Court Considers Case Reqarding Law of Perpetuities

December 16, 2014,

A Probate Lawyer said the question presented on this record is whether the trusts created by the will of CMR, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits, and income of the trust-estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder, on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority, and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only; but if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law.

An Estate Lawyer said there would be no difficulty in sustaining the limitations in the will, if the period of suspension in this case is reckoned from the death of the testatrix, and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate, and a minority, and substantially the same rule applies to limitations of personal property. By another section of the statute it is declared that the delivery of the grant, where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate. If nothing is to be considered in this case except the terms of the will, and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will; but if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her, as the owner of the property devised and bequeathed, of the jus disponendi, incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust-deed of January 6, 1853, and the provisions of the statute of powers. By section 128 of that statute it is declared that ‘the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed, not from the date of the instrument, but from the time of the creation of the power. Section 129 declares that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person could not be capable of taking under the instrument by which the power was granted; and by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.

A Westchester County Lawyer said it is claimed in behalf of the respondents that the will of Mrs. CMR was merely an execution of a power of appointment reserved in the trust-deed of January 6, 1853, made between the testatrix (then CMF) of the first part, and GSR and others of the second part, and that, construing the will in connection with the trust-deed and the provisions of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after the trust-deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz., the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust-deed was made in contemplation of the marriage of the settlor, CMF, with GSR. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts, or incumbrances of her husband, and to secure the principal to her, if she survived her husband; or, in case she should die during coverture, to her appointees by will; or, if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate.

A Suffolk County Probate Lawyer said to secure these objects, the settlor conveyed by the trust-deed to the trustees all her real and personal estate in trust, to receive and apply the rents, issues, profits, and income to her use as received without power of anticipation during her coverture, and in case she survived her coverture, to reconvey the property to her; but in case she should die during coverture, then the trustees are directed to grant, assure, and deliver all and whatever may remain of the hereby granted premises unto such devisee or devisees, in such share or proportion as she, the said party of the first part, by her last will and testament may appoint, which appointment the instrument declares she, the said party of the first part, is empowered, authorized, and enabled to make, and by force of these presents, without any other or further reservation of power in that behalf, etc. Then follows an alternative provision that in default of appointment the property shall go unto such person or persons living at the death of the said party of the first part, and being her heir or heirs at law, as would be entitled to take the same by descent from her in case the same was land belonging to her, situate in the state of New York, and, if more than one person, then in the proportion in that behalf prescribed by the laws of said state.

The trust-deed created a valid trust for the joint lives of Mrs. CMR and her husband, or during coverture, if she should become discovert by the death of her husband before her death. It was one of the express trusts authorized by statute, to receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or for a shorter period, and suspended the power of alienation of the real estate and the absolute ownership of the personal property embraced in the trust, during the trust term; and although the trust might have terminated before the expiration of Mrs. Rigg's life by the death of her husband in her life-time, the suspension was, in legal effect, a suspension during a life. Neither she alone, nor in conjunction with the trustees, could abrogate the trust. The statute makes every conveyance or other acts of the trustees of an express trust in lands, in contravention of the trust, absolutely void, and by analogy the same rule governs trusts of personal property. The will further provides in a contingency for the suspension of the power of alienation and the absolute ownership of at least one-half of the same property during the lives of the two children of the testatrix, making possible a suspension for three lives, if the trust created by the trust-deed, and the trusts created by the will, are to be read as if incorporated in a single instrument, viz., the trust-deed of 1853. If Mrs. CMR remained the absolute owner of the property after the execution of the trust-deed, subject only to the estate of the trustees for her life, the trusts in the will would be valid. The reversion in the case supposed would be property which she could grant or devise, and limit future estates thereon in her discretion, subject only to the restriction that they must vest in absolute ownership within two lives in being at their creation. But Mrs. CMR was not the absolute owner of an estate in reversion after the execution of the trust-deed. In form the whole estate was conveyed to the trustees. Their title, however, was, in legal effect, limited in point of duration to the trust term. But the trust-deed itself contains a limitation of the estate to other persons than Mrs. CMR in the event of her death before her husband, and without having made an appointment by will, viz., to such persons living at her death as would take the property as her heirs, under the laws of the state of New York, by descent, as if it was wholly real estate. The property transferred by the trust-deed was mainly personal, but at the time of Mrs. CMR' death was mainly real, the trustees having, under the authority of the deed, invested the fund to a large extent in real estate situate in New York and Maryland.

The remainder-men, in case the event happened upon which the remainder was limited, would take as purchasers. It was limited to persons who would not be entitled as of course to the personal estate, and who might not be entitled to the real estate outside of New York, and whose title would not be subject to the tenancy by the curtesy of the husband, as it would have been if the deed had not been made. It is true that the remainder might be defeated by either of two events,-by the death of Mrs. CMR before the death of her husband, or by her will in execution of the power of appointment made and taking effect during his life,-and it was in fact defeated in the latter way. But Mrs. CMR could not during the life of her husband affect the limitation in remainder, except in the particular way pointed out; that is, by an appointment by will. She could not defeat it by a conveyance inter vivos. The quality of absolute property, which enables an owner to dispose of it in any of the forms known to the law, did not attach to the interest remaining in Mrs. CMR after the execution of the trust-deed. What she did have was a reversion depending on the event of her outliving her husband, which has been defeated by her death, and in addition a right to appoint by will only in case of her death during coverture. It is a doctrine of the common law that an unrestricted power to appoint a fee in lands by deed or will is equivalent to ownership, because the donee of the power may at any time, by exercising the power, acquire an absolute estate, and in such cases the question of perpetuity arising upon limitations made by the donee of the power is determined with reference to the date of the execution of the power, and not of the instrument creating it. But the general rule is expressed by Chancellor Kent, in his Commentaries, An estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power. The power of disposition reserved by Mrs. CMR in the trust-deed was not an absolute power equivalent to absolute ownership. It was restricted to a disposition by will. The statute of powers defines an absolute power to be one by which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit. The power in this case was general, but not absolute.
We think the validity of the suspension in the will of Mrs. CMR is to be determined by the test, whether it would be valid if it had been part of the limitation in the trust deed, and had been inserted therein at the time the deed was executed. This seems to be the rule of our statute, and it is the rule of the common law in respect to appointments under special powers. Mr. Jarman, in referring to this subject, says that the reason that this test is not applicable to appointments under general powers is that such powers are, in point of alienation, equivalent to actual ownership; but he adds: This reason fails when the power, though general in its objects, is to be exercised by will only. In such a case, the power of disposition is suspended during the life of the donee, and appointments made by virtue of it are therefore to be tested in the same way as appointments under a special power. The case of In re Powell's Trusts, 39 Law J. Ch. 188, decided by JAMES, V. C., cited by Mr. Jarman, fully sustains the text. The case of Rous v. Jackson, L. R., 29 Ch. Div. 521, seems to be adverse, but it proceeded, I think, on a failure to discriminate between a general and unrestricted power, and one to be exercised by will only, and this is the view taken by Mr. Gray, in his work on Perpetuities, § 526. We think, therefore, the trusts in the will of Mrs. CMR are to be construed as if created at the date of the trust-deed of 1853, and that, so reading them, they are invalid as an attempt to suspend the power of alienation of real estate and the absolute ownership of personal property for three lives, and for the additional reasons that the two children upon whose not in being when the trust-deed was executed, and could not have taken such an estate as was limited under the will, if it had been limited in the same manner in the deed of 1853.

The argument has been urged upon us that, conceding that the absolute power of alienation of the trust-estate was suspended during the coverture of Mrs. CMR, under the general rule, by reason of the disability imposed by the statute upon the trustees to do any act or make any conveyance in contravention of the trust, this disability was removed as to property held in trust for married women by the married woman's act of 1848, as amended by the second section of the act of 1849. That section provides that any person who may hold any real or personal property as trustee for any married woman may, on her written request, convey the same to her, or the rents, issues, or profits thereof, for her sole and separate use and benefit; but it is made a condition to such conveyance that the request shall be accompanied by a certificate of a justice of the supreme court that ‘he has examined the condition and situation of the property, and made due inquiry into the capacity of the married woman to manage and conduct the same. This statute does not, we think, answer the difficulty. Assuming that the trust in this case was within the statute of 1849, the disability imposed upon a trustee of an express trust by the general statute is not removed in the case of a trustee for a married woman except conditionally, the condition being the judicial action of a judge certifying, after a judicial examination of the facts, that it is a proper case for the exercise of the power conferred by the act. In substance the statute confers a power dependent upon the consent of a judge of the court. Until such consent is obtained, the suspension continues. It could not be terminated by the conjoint action of the trustees and Mrs. CMR. The general test of alienability is that there are persons in being who can make a perfect title. This cannot be predicated, we think, of a situation where judicial action, which may or may not be obtained, is requisite to authorize a conveyance. See Gray, Perp. § 527. But, independently of this consideration, we think the statute was intended to apply merely to nominal trusts, to secure a married woman in the enjoyment of her separate estate, where this was the sole object of the trust. The statute, in such a case, permits the trust to be abrogated and the legal title to be vested in the beneficial owner, the separation of the legal and equitable estate no longer serving under our statutes any useful purpose. It certainly cannot be construed to prevent a parent, relative, or other person from creating an express trust to apply the rents and profits of the trust-estate for the benefit of a married daughter, niece, or other female, without subjecting it to the risk of destruction by the conjoint action of the trustee, the beneficiary, and the court. In this case the trust created by the deed of 1853 was not a mere formal or passive trust. The title to the property was vested in the trustees. It was strictly a trust under the statute. The deed not only declared the interest of Mrs. CMR in the trust property, but limited thereon future contingent estates, to take effect on her death during coverture, unless defeated by her appointment by will. This trust was not, we think, within the purview of the statute of 1849. If a conveyance had been made to her under that statute, the property would not be held ‘for her sole and separate use and benefit, because the contingent estate in remainder could not in that way be defeated. We think the court below properly construed the will, and the judgment should therefore be affirmed.

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Court Decides Case Reqarding Distribution of Retirement Funds

December 15, 2014,

An Executrix in a purported will dated June 29, 1964, has petitioned for its probate. Decedent's brother has filed objections. The other eight distributees have appeared in the proceeding but have not filed objections.

A Probate lawyer said that subsequent to probate proceeding, all nine distributees, as plaintiffs, commenced an action in the Supreme Court of Richmond County against executrix as an individual, and against New York City Employees' Retirement System of the Board of Estimate of the City of New York.
According to the complaint, the distributees seek, in that action, to set aside a designation dated January 10, 1956, whererby the Decedent designated the said the executrix as the beneficiary of his interest in funds payable on his death by the Retirement System.

The Proponent has now moved this Court for permission to transfer the Supreme Court action to this Court.

An Estate Lawyer said that during his lifetime the Decedent apparently executed various beneficiary designations. According to the complaint in the Supreme Court action, on his original application he named his father. On January 18, 1929, he named his wife. On November 6, 1952, he named his estate. On January 10, 1956, he named the executrix.

Nassau County Probate Lawyers said it is the contention of the plaintiffs in the Supreme Court action that the Retirement System funds are payable to Decedent's estate. It would seem obvious then, that if the plaintiffs in the Supreme Court action are successful, the ultimate distribution of the Retirement System funds will have to await the determination of the Surrogate's Court in the pending will contest and the administration of Decedent's estate. Unless and until a representative of Decedent's estate is appointed by the Surrogate's Court and is made a party to the action in the Supreme Court, it is difficult to see how a final binding determination can be made. The validity of the designation of beneficiary might have to be relitigated in an action brought, this time, by an administrator of the estate.

Section 19(a) of Article VI of the Constitution of the State of New York provides that the Supreme Court may transfer 'any action or proceeding to any other court having jurisdiction of the subject matter.'

A Staten Island Probate Lawyer said that section 33 of Article VI of the Constitution of the State of New York provides that 'Existing provisions of law not inconsistent with this article shall continue in force.'

In the light of section 19(a) of Article VI of the Constitution of the State of New York, there may be some question as to the necessity of the Surrogate's consent viewed as a prerequisite to an order of the Supreme Court transferring the pending action in question to this Court. However, since the action sought to be transferred is appropriate to the administration of Decedent's estate and since full and final justice to all parties may depend upon the completion of the administration of the estate, the application is granted.

In another case, two proceedings concerning the estate of a deceased, who died in 1914, are before the Court. In one proceeding, an individual has asked to have his accounts settled and for permission to resign as executor and trustee. In an earlier opinion, dated May 22, 1963, he was allowed to resign and decedent's son was appointed in his place. The other proceeding involves the settlement of the accounts of a deceased executrix and trustee. These two proceedings are consolidated with the consent of the parties.

A New York Estate lawyer said that there have been four prior accountings in this estate. The last one was in 1935. In settling that account the then Surrogate expressly reserved for a later determination the question of whether a certain extraordinary dividend received by the trustees from the a corporation should be treated as principal or income.

When he died, decedent owned undivided fractional interests in various parcels of real estate in Richmond and Suffolk Counties. In 1923 the executors and trustees sought and received Supreme Court approval of the formation of the corporation pursuant to Section 116 of the Real Property Law. The Corporation took title to the real property and the estate received stock and bonds in exchange. Prior to 1935 the Corporation sold substantial portions of its real estate holdings in Richmond County at a profit over book value of $91,816.70.

'The right to a dividend as between the life tenant and remainderman of an estate is determined by the facts as to the source and character of the dividend considered in the light of the testator's intention.'

As a general rule dividends representing the increased value of the investments of a corporation are to be considered a distribution of capital and should be added to the principal of the trust.
There are exceptions to the general rule, and it is urged that the exception established in a case, should be applied. This exception was based on a finding that the corporation there involved was a real estate trading corporation, and when it sold its real property it was merely selling its stock in trade. These facts led the Court to conclude that the profits realized were made in the ordinary course of business and belonged to the income beneficiary.

The corporation was not a trading corporation buying and selling real estate in the ordinary course of business. It was formed under a special statute, Real Property Law, § 116. This statute, while permitting a trustee to make what would otherwise be an unauthorized investment, does not authorize the formation of a real estate trading corporation. There is no evidence that the Corporation ever bought any real property. It appears that the lands initially conveyed to the Corporation produced enough income to pay expenses and from time to time to pay some ordinary dividends.

The Court concludes that the extraordinary dividends must be added to the principal of the trust.
Although no formal objections were ever filed in either of the proceedings, several matters were the subject to disagreement among the parties. These disagreements have now been resolved by stipulation.

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Court Hears Appeal for the Issuance of a Set Off

December 14, 2014,

A Probate Lawyer said in an action to foreclose a materialman's lien, the appeal is from a judgment of the Supreme Court, Richmond County, dated November 2, 1981, which confirmed the Referee's decision of July 7, 1981, in favor of the plaintiff and against defendant Corporation in the total amount of $64,112.81.

By order of this court dated September 13, 1982, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Richmond County, with the direction that upon remittitur "Special Term should refer this matter to the Referee for a factual determination with regard to whether defendant is entitled to a 'set-off' or credit in the sum of $25,000, thereby reducing the principal amount of the judgment against it to that extent". The referee's report on remittitur, dated November 15, 1982, states that Beverly is not entitled to the $25,000 setoff.
A general construction contractor of a residential community located on Staten Island, was a joint venture comprised of defendant and another corporation. Defendant is the representative of the estate, the subcontractor employed under two separate contracts to install the plumbing in those sections of the Village designated as Loop A and Loop B. Plaintiff allegedly delivered materials to Iosue for use at the Village project, and for which it was never compensated. Its lien in the amount of $43,148.88 was timely filed on December 28, 1972. It seeks recovery of that amount from Company.

An Estate Attorney said that the Referee concluded that defendant did not breach the contract and that the Company was indebted to defendant in the amount of $41,483.32, for the unpaid extras. Further, the Referee determined that the lien was valid, and that it could attach to the full amount awarded. However, the Referee's initial decision did not address the validity of the Company's claim for a $25,000 setoff against any amount owed.

Accordingly, this court remitted the matter to enable the Referee to make a determination on the issue of the setoff. After conducting a hearing, the Referee concluded that Beverly was not entitled to the requested setoff, since it failed to establish that the $25,000 payment was for noncontractual extras, and not for items covered under the original contract.

In regard to the claim for extras, the law is well settled. It was succinctly stated in a case, where the court held:

"With respect to material furnished a subcontractor by materialmen, liens filed by such materialmen can only be enforced to the extent of money owed by the contractor to the subcontractor.

Consequently, unless the corporation is indebted, there is no fund upon which the lien may attach.

Long Island Probate Lawyers said the Referee was correct in concluding that there was no breach of contract. The record revealed that the corporation's actions were partially responsible for any delay in completing the contract. In such a situation, the company may not be permitted to assert to its advantage the failure to perform within the time originally allotted. Furthermore, the company failed to establish by a preponderance of the evidence that the breached the contract by abandoning performance thereunder. Thereafter, defendant forwarded a written response indicating that he had supplied additional men and intended to abide by the terms of the contract.

Where the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and is not opposed to the probabilities; nor in its nature, surprising or suspicious, there is no reason for denying to it conclusiveness.

We pause to note that the Referee erred in relying on the testimony to establish that Beverly waived any claim of breach by abandonment. The testimony did not establish that the continued to perform pursuant to the Loop B contract, following the aforementioned letter of proposed termination.

Queens Probate Lawyers said the Company's assertion that defendant failed to prove a prima facie case is meritless. There is no reason to disturb the Referee's determination that Beverly is indebted in the amount of $41,483.32. Moreover, the company is not entitled to the requested setoff of $25,000, since it failed to sustain its burden of proving that the payment was for noncontractual extras. Inasmuch as defendant did not breach the contract, Beverly may not setoff its alleged damages against the amount owed. Thus, there is a fund upon which defendant's lien may attach. Moreover, defendant proffered sufficient proof to establish delivery of the materials.

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Court Decides Summary Judgment Case

December 13, 2014,

A Probate Lawyer said the defendants the City of New York and the New York City Fire Department (hereinafter, "the City"), move by notice of motion for summary judgment and dismissal of the complaint as against them. Defendant hospital cross-moves for identical relief. Plaintiff, as Administrator of the Estate of an infant, deceased, and administrator, individually oppose both motions.

An Estate lawyer said that this litigation arises from the untimely death of a deceased. On July 5, 2003, while the family was hosting a barbecue in honor of their daughter and son, a fire broke out in their residence. At approximately 5:00 p.m., the mother called 911 to report the fire and realized that another son, was still inside the house. Upon their prompt arrival, New York City Firefighters found the son on the third floor, unresponsive. He was not breathing and had no pulse. The gravamen of plaintiff's complaint revolves around the subsequent attempts at resuscitation by the Fire Department's Basic Life Support Unit (EMTs) and the hospital t, whose efforts ultimately proved fruitless. Plaintiff commenced this action by the filing and service of a summons with complaint upon the City on or about July 13, 2004.

Brooklyn Probate Lawyers said in moving to dismiss, the City alleges that (1) they did not owe any special duty to the decedent and, therefore, are immune from liability; (2) nothing done by the municipal defendants worsened the decedent child's condition; and (3) any negligence on the part of the City cannot be shown to be a proximate cause of decedent's death.

In support of these allegations, the City relies upon the well established principles of governmental immunity, as well as the expert affirmation and the deposition testimon.
According to the City, the case against it must be dismissed pursuant to the general rule that a municipality may not be held liable for claims of negligence arising out of the performance of its governmental function. While recognizing that an exception exists where a special relationship is found between the claimant and the municipality, the City alleges that no such relationship is present herein. The City also alleges that even if a special relationship did exist, none of the care rendered to the deceased infant by any of its employees was a proximate case of his death.

Bronx Probate Lawyers said in cross-moving for summary judgment, the Hospital's adopts many of the same arguments advanced by the City and, in reliance upon the affidavit of the doctor, argues that its motion should be granted due to the absence of any causal relationship between the acts or omissions attributed to it and decedent's death.

In opposing both the motion and the cross motion, plaintiff alleges that sufficient evidence has been proffered to establish not only that a special relationship existed between decedent and the City, but that the City affirmatively assumed a duty to render care to the decedent. Plaintiffs further contend that sufficient evidence has been adduced to establish prima facie that the acts and omissions of the City's and the hospital's EMTs were a substantial factor in causing the infant's death.

In reply, the City maintains that plaintiff has failed to establish a special relationship between itself and the deceased based upon detrimental reliance. Accordingly, no duty was created. Moreover, even if such a duty did exist, the City argues that plaintiff has failed to show any non-speculative basis on which to demonstrate that said duty was breached. In this regard, the City contends that the affidavits of plaintiff's experts (1) include numerous factual errors and misstatements, and (2) repeatedly confuse the duties of the hospital 's Advanced Life Support Unit with those of the Fire Department's Basic Life Support Unit, e.g., alleging departures in procedure by Basic Life Support personnel regarding measures which they are not permitted by law to perform, such as intubations, the administration of cardiac medications and the attachment of a cardiac monitor.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law. On a motion for summary judgment, the function of the court is issue finding, not issue determination. In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion. To prevail on the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law.

In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue. Thus, summary judgment is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact.
It is be incontrovertible that municipalities are generally immune from tort liability for the negligent performance of discretionary acts, i.e., those which require the use of reasoned judgment. Thus, a municipality may not be held liable for injuries resulting from the failure to provide adequate police or fire protection.

As for, the exception claimed by plaintiff, i.e., the second exception, it has been held to have four basic elements (a) an assumption by the municipality of an affirmative duty to act on behalf of the injured party; (b) knowledge on the part of its agents that inaction could lead to harm; (c) direct contact between the City's agents and the injured party; and (d) that party's justifiable reliance on the municipality's affirmative undertaking. In this regard, it must also be noted that the special relationship rule has been applied to cases involving both nonfeasance.
With respect to establishment of a special relationship, the City alleges that plaintiffs must demonstrate that the decedent justifiably relied upon the actions of the municipal defendants to his or her detriment. Accordingly, when viewed in the present context, it is incumbent upon plaintiff to show that the acts of the City's employees lulled her into a false sense of security, and that such reliance induced her to forego other possibilities of obtaining medical care, thereby placing the deceased in a worse position then he would have been in had the City never acted.

Contrary to plaintiff's conclusory allegations of detrimental reliance, the papers presently before the Court are devoid of any evidence of same. Rather, the deposition testimony of both the firefighters who initiated resuscitative efforts and the members of the Basic Life Support Unit which took their place until the Hospital's Advanced Life Support Unit arrived, as well as that of the decedent's mother, demonstrates that the actions attributed to the City did not cause plaintiff to forego any other avenues of rescue.

A likewise result is required with respect to St. Vincent's. Viewing the evidence in the light most favorable to the plaintiff, and accepting the affidavits of plaintiff's experts, in which they opined defendant St. Vincent departed from acceptable practice in that there was a failure to defibrillate, establish an IV line, or administer appropriate heart rhythm medications, these said alleged departures are insufficient to establish they were a substantial factor in causing the son's death. To the extent plaintiff's experts' opinions indicated, the deceased could have been resuscitated, this Court finds them to be mere speculation and conjecture without a sufficient objective basis.

According, it is ORDERED that the motion for summary judgment by the City of New York, the New York City Fire Department and the hospital's are granted; and it is further ORDERED that the Clerk of the Court enter judgment accordingly.

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Court Decides Motion for Summary Judgment

November 25, 2014,

A New York Probate Lawyer said that before the court is a motion for summary judgment filed in connection with petitions for the removal of fiduciaries in the related estates of the decedents. For the reasons set forth below, the court declines to entertain those portions of the motion seeking the removal of fiduciary in any and all of his fiduciary capacities or seeking relief from the other, and denies the balance of the relief, except that the request for an order compelling compliance with discovery demands will be held in abeyance pending the court's review of all of the relevant documents in camera.

A Kings County Estate lawyer said that Decedents were a husband and wife who tragically died together in an automobile accident on April 22, 2005. They were survived by their three adult sons, movants herein. Both decedents executed wills on November 19, 1986, and both wills provide that in the event that the sons is not survived by a spouse, then the brother shall serve as Executor.

A New York Estate Lawyer said the wills were filed for probate on October 13, 2005 and admitted to probate on March 1, 2006. Letters testamentary in each estate issued to the son on March 3, 2006. At the same time, the son received letters of trusteeship in the father's estate.

On November 1, 2007, movants filed petitions seeking (1) the revocation of letters testamentary issued to the son in each of the two estates; (2) the revocation of letters of trusteeship issued to the son in the estate of the father; (3) the appointment of the co-administrators, c.t.a. of each estate; and (4) a court order directing the son to file accounts as executor of both estates and trustee in the estate of the father.

Manhattan Probate Lawyers said that movants aver that there was intense hostility between the respondents and decedents (and decedents' sons, movants herein) since 1997, due to disputes over family business interests. According to movants, respondents were not permitted to attend decedents' funerals. Despite this history, prior to their unexpected deaths in 2005, the decedents never revoked their 1986 wills or executed new estate planning documents. In their affirmation in opposition, respondents claim that they hold no animosity toward movants.

New York City Probate Lawyers said the motion for summary judgment presently before the court seeks an order: (a) granting summary judgment removing the son as executor of the estates of the parents; (b) granting summary judgment removing the co-trustees of the Trust and the Trust due to misconduct including self-dealing, conflict of interest and waste of estate and trust assets, and directing respondents to account as executors and co-trustees; (c) compelling respondents to comply with discovery demands served on September 28, 2009.
Counsel for respondents filed an affirmation in opposition to the motion which asserts that following the filing of the petitions for removal and for accountings, respondents provided informal accountings and interim judicial accountings along with thousands of pages of documents in response to demands for production. Counsel argues that there are numerous disputed, material and relevant factual issues concerning the conduct of the executors which cannot be resolved as a matter of law.

Movants then responded with a reply affirmation arguing that the respondents' opposition to the motion is based upon unsubstantiated and self-serving allegations and contains no documentation to directly refute movants' charges of fiduciary misconduct and self-dealing.
Summary judgment may be granted only when it is clear that no triable issue of fact exists. The court's function on a motion for summary judgment is "issue finding" rather than issue determination, because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party.

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. In doing so, the party opposing the motion must lay bare his proof. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment.

Pursuant to EPTL 1-2.7 a trustee is a fiduciary. As a fiduciary, a trustee "owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect". A trustee is duty-bound to act in good faith in the administration of a trust, with honesty and undivided loyalty to the beneficiaries and avoid any circumstances whereby the trustee's personal interest will come in conflict with the interest of the beneficiaries. The purpose of this rule is to ensure that the trustee's acts are above suspicion and that the trust receives the trustee's uninfluenced judgment.

The conduct of the trustee, as reflected in both the charges made by movants and the response thereto, is the subject of a factual dispute, namely, whether the withdrawal of principal from the Trust was proper pursuant to a corporate agreement or whether the agreement was limited to an insurance policy that had long ago been surrendered. This dispute cannot be determined in the context of this motion. This portion of the motion is denied.

The request for relief stems from a discovery schedule established in connection with the intermediate accounts filed by fiduciaries of the estates and trusts. Movants' counsel concurs that respondents turned over many documents responsive to movants' demand for discovery and inspection, but that respondents refused to supply retainer agreements and time and billing records for the attorneys and accountants who had rendered services to the estates and trusts, or the retainer agreements between attorneys and any related entities. These refusals were made on the grounds of attorney client privilege, as expressed in a letter dated March 26, 2010. Subsequently, counsel for respondents agreed, at a court conference held on July 21, 2010, to provide billing records and the records were provided to movants' counsel on September 1, 2010. However, all pertinent information was redacted from the billing records provided by respondents, making it impossible for movants to determine or object to the reasonableness of the fees charged.

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

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

CPLR 3122(b) establishes the requirement under New York law for a privileged document log when a party seeks to claim an attorney-client privilege. The Court of Appeals has recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review.

The attorney-client privilege seeks to insure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privilege has been codified in CPLR 4503(a)(1), which bars disclosure of any confidential communications between a client and his/her attorney.

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

n the experience of this court, it is highly unusual for fiduciaries to assert a claim of privilege concerning billing records, and the extensive redaction of data from the records supplied by respondents in this matter creates a virtual mockery of the notion of disclosure. At the same time, the court is cognizant that the attorney client privilege is "of the oldest among common law evidentiary privileges, fostering the open dialogue between lawyer and client that is deemed essential to effective representation" and that the court, too, has not yet seen the redacted data, which may be more sensitive than it appears from the surrounding un-redacted data.

A final determination on the motion for summary judgment to compel production of un-redacted copies of the billing records and production of the requested retainer agreements is held in abeyance pending an in camera review of all of the pertinent documents in un-redacted form.
Any request for relief seeking to compel distributions by of the executor of the two estates or as trustee of the two trusts is stayed by his death, until such time as a fiduciary is appointed for his estate and the personal representative is substituted in place of the executor.

In connection with the conduct of Thomas as trustee, movants argue that the trustees failed to properly include all assets in calculating principal distributions, and that distributions of interest have been questionable. In response, counsel for the respondents argues that distributions from the trust have correctly been based upon "then existing principal," and that interest in her retained earnings in the Enterprises is payable over 10 years, pursuant to the relevant shareholders' agreement, which impacts on the distributions payable by the trustees.

The proper computation of distributions from the trusts is an issue of fact rather than an issue of law. As noted above, accountings have been filed by the trustees, and the information contained in the accounts and in the objections thereto will be pertinent to a final computation. This portion of the motion for summary judgment is denied.

The removal of respondents' counsel on grounds of conflict of interest and misconduct and the setting of counsel's fees are fact-based determinations, not properly decided in the context of this motion for summary judgment. This portion of the motion is denied.

Movants claim that respondents have paid excessive legal and accounting fees and have taken excessive commissions. Moreover, they seek an order surcharging the fiduciaries for these payments and for losses resulting from their conduct.

The court denies as moot those portions of the motion numbered (a) and (b) seeking the removal of the heirs in any and all of his fiduciary capacities, and denies the requests for relief in items (b), (d), (e), (f), and (g) in the motion for summary judgment, which seek: (b) the removal of the co-trustee; (d) an order compelling distributions of principal; (e) an order compelling distributions of income; (f) the removal of respondents' counsel, and (g) the imposition of a surcharge on the fiduciaries. As to the request for relief in item (c), the court will conduct an in camera review of all of the documents requested in un-redacted form and then issue a determination on the motion for summary judgment to compel production of un-redacted copies of the billing records and to compel production of the retainer agreements.

If you are an heir, whose right was deprived by reason of a last will and testament, you can consult our Kings County Will Contest Lawyers, who will inform your rights as heirs. For the probate of a will of a decedent, we also have Kings Probate Attorneys. Call us now here in Stephen Bilkis, we will provide the advice you need.


November 24, 2014,

A New York Probate Lawyer said the petitioner moves for summary judgment on her entitlement to take an elective share of the decedent's estate pursuant to EPTL 5-1.1-A. In opposition, respondents, the coexecutors of the estate, argue the motion is premature as no discovery has been conducted, and there are material and triable issues of fact raised by their counterclaims and defenses.

A Kings Estate attorney said that respondents filed a verified answer alleging various affirmative defenses1 and counterclaims seeking to: (1) have the alleged marriage between the decedent and petitioner deemed null and void ab initio, and to annul the marriage nunc pro tunc; (2) dismiss the petition in its entirety; (3) vacate petitioner's notice of election dated October 26, 2006; and (4) award the estate damages for the costs of this proceeding. Alternatively, if petitioner is not disqualified as a surviving spouse, they seek an award of compensatory damages equal to the elective share, plus interest and costs of the proceeding for the loss to the estate resulting from petitioner's fraudulent conduct.

A New York Estate Lawyer said the decedent died on June 16, 2006, survived by two sons, the coexecutors herein, and four grandchildren from a prior marriage. Petitioner served as the decedent's caretaker during the last decade of his life. The decedent's will dated July 10, 1982, was admitted to probate on October 30, 2006. Letters testamentary were issued to the nominated coexecutors on that date. The decedent's children and grandchildren were the sole beneficiaries under the will. The record reflects that a notice of election dated October 26, 2006 was timely filed by petitioner, and was properly served upon the coexecutors.

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law. The court's burden is not to resolve issues of fact, but merely to determine if such issues exist. It is a drastic remedy that will only be granted where there is no triable issue of fact.

Brooklyn Probate Lawyers said the court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of their day in court.The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make out a prima facie case requires denial of the motion regardless of the sufficiency of the opposing papers. If however a prima facie case is made, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial by tendering evidentiary proof in admissible form.

Estates, Powers and Trusts Law § 5-1.1-A allows a surviving spouse a personal right of election to take a share of a decedent's estate when the parties are in fact married on the date of the decedent's death. This statute provides that a husband or wife is a surviving spouse within the meaning of EPTL 5-1.1-A, unless it can be established satisfactorily to the court that any of the grounds for disqualification contained in EPTL 5-1.2 exist.
Petitioner in her affidavit in support of the motion states that she married decedent on June 17, 2005, and remained married to the decedent until the time of his death, annexing as exhibit A, a "Certificate of Marriage Registration" which was filed with the City Clerk's Office of the City of New York.

Bronx Probate Lawyers said the petitioner having shown that she and the decedent were married on June 17, 2005, and remained married at the time of his death has made out her prima facie case. The burden now shifts to respondents to establish a material issue of fact precluding the grant of summary judgment to petitioner on her right to take an elective share of the estate.
An annulment may be granted if one of the parties was incapable of consenting to the marriage for want of understanding or comprehending the significance of the decision to marry. A postdeath action for annulment may be maintained provided the person(s) seeking same establishes an interest to void the marriage. However the granting of a postdeath annulment herein would not defeat petitioner's right of election as a surviving spouse as petitioner's right to elect against the estate became fixed and unalterable upon the death.

As a surviving spouse's right to elect against a will is not disturbed even if the marriage is annulled postdeath, any claim that this motion is premature as required discovery has yet to be conducted is of no moment and does not impact on this motion seeking a determination of petitioner's right to take her elective share under EPTL 5-1.1-A.

Respondents' argument that if the marriage is annulled it will be voided nunc pro tunc and be void from inception, negating the need to demonstrate one of the grounds for disqualification contained in EPTL 5-1.2 as no valid marriage existed in the first place, is misplaced. Pursuant to Domestic Relations Law § 7 a marriage is voidable, not void, if one of the parties thereto was incapable of consenting to the marriage for want of understanding, or consented to same by reason of force, duress, or fraud.

Alternatively respondents argue that if the marriage cannot be voided petitioner should be "equitably estopped" from claiming that she is the decedent's spouse, since as his caretaker she stood in a "fiduciary" relationship with the decedent and the family. By keeping silent about the marriage, petitioner abused the trust accorded her by the family to their detriment. Therefore, respondents argue, petitioner's misrepresentations about her marital status, or her failure to disclose her marital status in the face of an alleged duty to do so creates both legal and factual issues warranting denial of the motion.

The court finds respondents' argument unavailing as there is no legal authority for, nor have respondents cited any for, the proposition that petitioner had a legal duty to inform anyone concerning her marital status, and that failing to do so she is estopped from claiming to be decedent's spouse. In that case, summary judgment was denied to the decedent's first wife seeking the surviving spouse's intestate share where the second wife alleged she married decedent in reliance on the false oral representation of the first wife that she had divorced the decedent. In denying the motion the court concluded that such findings of fact might result in the determination that the equitable defense of estoppel would bar the first wife from claiming a surviving spouse's intestate share.

Finally, respondents argue that the motion should be denied based on petitioner waiving her right to elect against decedent's will. They draw the court's attention to a "handwritten note" written, signed and produced by petitioner which states in pertinent part, "I like the people knows that this marriage is not for money. I'll not take any money from family."

While acknowledging that this handwritten note does not meet the statutory requirements of EPTL 2-1.11, respondents' argue that it should be treated as a common-law renunciation wherein petitioner renounced her rights to any interest she may have had in the decedent's estate and in so doing waived her right to elect against the decedent's will.

For petitioner to have waived her right of election, something altogether different than a renunciation, there must be compliance with EPTL 5-1.1-A (e) (2), which provides that "a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property." The writing herein contains neither a certificate of acknowledgment nor the signature of any subscribing witness rendering it ineffective to waive the surviving spouse's right of election. The purported waiver of the right of election provided by EPTL 5-1.1-A is to be strictly and narrowly construed. A surviving spouse will not be deemed to have waived such important statutory rights unless done so in the most unambiguous and unquestionable language. The "handwritten note" herein fails to comply with any of the strict statutory requirements to be an effective waiver of the spousal right of election.

In conclusion respondents argue that to give this "sham" marriage any validity would be to endorse petitioner's actions and create a rule that will allow future caretakers of the elderly an easy road to gain unlawful inheritance rights.

In this estate valued in excess of five million dollars, the court is cognizant of petitioner's former status as caretaker of the decedent who was 99 years of age, while petitioner was 47 years of age when they married; that petitioner did not disclose that she had married Irving Berk until after he died; and that there are issues concerning his capacity to have entered into the marriage. While this may appear incongruous and seemingly invites a plethora of surreptitious "deathbed marriages" as a means of obtaining one third of a decedent's estate immune from challenge, this is simply the state of the law. It is not for this court to write disqualifications into EPTL 5-1.2 or alter Domestic Relations Law § 7, which makes a voidable marriage void from the time its nullity is declared, rather than from the time of the marriage.

Based on the foregoing, it is the finding of this court that there are no issues of fact concerning petitioner's status as the decedent's lawful spouse on his date of death or her entitlement to exercise the right of election pursuant to EPTL 5-1.1-A.

Petitioner's motion for summary judgment is granted. Without passing on the merits thereof, respondents' counterclaims sounding in annulment and for an award of compensatory damages based on petitioner's alleged fraudulent conduct are dismissed without prejudice.

Here in Stephen Bilkis and associates, we have Kings Probate Attorneys who will file a petition for probate of the last will and testament of a decedent. We will make it a point that the requirements for the probate of the will are complied with. For other matters, don’t hesitate to consult our Kings County Estate Lawyers.

Court Reviews Petition to Modify Endowment Fund

November 23, 2014,

A New York Probate Lawyer said this is a petition to modify restrictions on an endowment fund, pursuant to section 8-1.1 of the Estates, Powers and Trusts Law or, in the alternative, section 522 of the Not-for-Profit Corporation Law. Petitioners, Trustees of a University, seek an order authorizing the subdivision of an endowment fund created by a testamentary bequest to the College of Medicine. The Attorney General of the State of New York (on behalf of ultimate charitable beneficiaries) has reviewed the current audit of the fund and raises no objection to the relief requested in the petition.

A Kings County Estate lawyer said that a decedent died on March 9, 1985. Her last will and testament was admitted to probate by a decree of this court dated April 5, 1985.
In September 1986, Columbia University received $1,500,000 from the estate of the decedent. The University established the Professorship ("Chair") for Clinical Medicine. As of September 30, 2009, the value of the endowment fund had increased to over $5,000,000.

A New York Estate Lawyer said that the University states that the income from the fund exceeds the amount required to fund a chair in clinical medicine. Specifically, the income exceeds the amount that can be utilized under the University's guidelines. The guidelines for endowment funds provide payment of a salary to the professor appointed to the professorship and expenses including laboratory space and research services. Beginning in 2007, the University has required $2.5 million to fund an endowment for a full professorship and $1.5 million to fund an endowed associate or an assistant professorship. The currently expendable income from the Uris professorship generates annual expendable income of $242,284.

Queens Probate Lawyers said the University states that the spending guidelines for endowments limit the amount of funds paid to professors in order to encourage the faculty to obtain research grants and maintain a medical practice. The University contends that the application of the entire fund in the endowment to one professorship would discourage a faculty member from seeking government and industry grants and engaging in patient care.

The University requests permission to subdivide the endowment fund into one endowment account with principal in the amount of $2.5 million, and the remaining principal would be placed in a new account and used to establish one or more additional professorships as the value of the fund allows. Each new professorship would bear the title.

Long Island Probate Lawyers said the petition seeks to modify the terms of the bequest pursuant to section 8-1.1 of the Estates, Powers and Trusts Law or, in the alternative, pursuant to section 522 of the Not-for-Profit Corporation Law. A charitable corporation may apply for the release of a restriction imposed by a gift instrument as to the use or investment of the fund (N-PCL 522). There is a co-existing right to seek modification pursuant to EPTL 8-1.1.

EPTL 8-1.1 subdivision [c] provides "Whenever circumstances have so changed since the execution of an instrument making a disposition for religious charitable, educational or benevolent purposes as to render impracticable or impossible a literal compliance with the terms of the disposition, the court may direct, or make an order or decree directing that such disposition be administered and applied in such a manner as in the judgment of the court will most effectively accomplish its general purposes, free from any specific restriction, limitation or direction contained therein."

EPTL 8-1.1 applies to all charitable dispositions including absolute gifts. This statute embraces both the doctrine of equitable deviation and the doctrine of cy pres. Equitable deviation under EPTL 8-1.1 is the equivalent of modification pursuant to N-PCL 522. Equitable deviation is utilized to alter or amend an administrative provision. The doctrine of cy pres is utilized to effect a substantive change.

The court is mindful of the concern that equitable deviation may be employed to modify a charitable disposition where a substantive change is requested but the higher standard for cy pres cannot be met.

The requirements for cy pres are: "1) the trust must be charitable in nature; 2) the language when read in light of all the attendant circumstances must indicate general rather than specific charitable intent; and 3) the particular purpose for which the trust was created has failed or become impossible or impracticable to achieve".

Generally, in the application of cy pres there is a further requirement that the donor have a general charitable intent with respect to trusts. The current Restatement of Trusts provides that in the application of cy pres a general charitable intent is presumed unless the donor expresses a contrary intent. The courts in this state still require evidence of general charitable intent in addition to specific charitable intent.

The question of general charitable intent is not so much an issue here, as petitioners do not seek to substitute the charitable institution selected by the testator, modify the charitable purpose, or extend the category of recipients of the award.

Cy pres can be applied to modify a charitable disposition where the change in circumstances is the creation of a surplus fund. A surplus exists where the fund exceeds the amount necessary or appropriate to accomplish the charitable purpose.

This case involves the uncommon situation where utilization of a surplus fund would not only be wasteful but would be counterproductive.

Similarly, in another case, the Manhattan School of Music requested modification of a testamentary bequest for scholarships. The school argued that compliance with the terms of the bequest would defeat the testator's purpose as it would require awards of scholarships to less-than-deserving students.

In this case, the University contends that application of the full endowment to fund a professorship in clinical medicine would eliminate the incentive to (1) obtain grants and (2) provide patient care. The first point relates to the financial impact to the University and the second concerns impairment of the University's commitment to patient care.

The court, therefore, grants the petition. The University is authorized to create an endowment fund of $2.5 million and additional endowment funds to support professorships, as the value of the remaining funds permit. The trustees are authorized, in their discretion, to reduce the number of additional professorships if the income from the funds decrease. Each endowment fund will be used to support a full professorship and each fund will be entitled as Professorship of Clinical Medicine named after the decedent.

Here in Stephen Bilkis and associates, our Kings County Probate Lawyers are here to represent you before the courts in case you seek to oppose an application or petition for probate of a will. If you desire to make a last will and testament and you are uncertain as to what properties to be disposed, our Kings County Estate Attorneys will guide you. Contact us now.

coexecutors Deemed Unfit in Probate Proceeding

November 22, 2014,

A New York Probate Lawyer said in this Probate action, an Order and decree (one paper), Surrogate's Court, New York County, entered on or about May 22, 1995, which removed the preliminary coexecutors, and appointed as temporary administrators, affirmed, without costs.

A Kings County Probate attorney said that the Surrogate's removal of the preliminary coexecutors pursuant to SCPA 711 and 719 was a proper exercise of discretion, and no evidentiary hearing was required under the particular circumstances. While the Surrogate's characterization of the facts as "undisputed" may not have been technically accurate, the unfitness of the coexecutors was established by a combination of documentary proof and the coexecutors' own concessions, and the totality of written submissions failed to raise any triable issue of fact.

The unfitness of the coexecutors to take responsibility for this $1.2 billion estate, bequeathed primarily to charity, was manifest. While "courts will not undertake to make a better will nor name a better executor for the testator", the standard of behavior of a fiduciary is "[n]ot honesty alone, but the punctilio of an honor the most sensitive".

A New York Estate Lawyer said the Surrogate properly concluded that the individual coexecutor, the decedent's former butler wasted estate assets by collecting a substantial salary and lavish fringe benefits, supposedly as a "live-in" estate employee, living as if the estate properties were his own. There was no justification for these emoluments, since he was also entitled to lucrative executor's commissions. This also constituted self-dealing, since this dual capacity was authorized by no one except himself, and the corporate coexecutor appointed and removable under the terms of the will.

Nassau County Probate Lawyers said the Surrogate also properly concluded that the coexecutor routinely commingled personal and estate assets, a serious breach of fiduciary duty for which repayment is no defense.

The Surrogate also properly concluded that the corporate coexecutor created a conflict of interest by granting coexecutor unsecured loans in the amount of $825,000, to pay for his "personal needs," i.e., still more luxuries. This gave the corporate coexecutor a financial stake in his continued service as an executor, so that he could repay the loans out of his commissions, a conflict which was actual and not theoretical, since it was apparent that the corporate coexecutor improperly acquiesced in Lafferty's assorted misconduct.

A Staten Island Probate Lawyer said that whether removal of the co-executors will ultimately be warranted is an issue not properly before the Court at this juncture. In view of the failure to conduct an evidentiary hearing, the various reasons advanced by the Surrogate to support replacement of the co-executors are not sustained by proof of serious misconduct, which the law requires to justify supplanting the decedent's choice of executors. Moreover, because the record is devoid of findings of fact, it is insufficient to permit appellate review of the adequacy of the proposed grounds for removal. Finally, without a judicial accounting, the current record is insufficient to support even the imposition of a surcharge against the co-executors.
The interests of the residual charitable beneficiaries of decedent's estate are represented by the Attorney General, who submits that while, "on its face, invests the Surrogate with sweeping power its exercise must be used only in egregious cases in which the facts are truly undisputed. Because the Surrogate's order was entered without a hearing and is plainly contested over what the order called 'undisputed facts,' it should be reversed." His brief further notes that permitting the removal of a designated executor absent demonstrated substantial grounds sets an unfortunate precedent with an undesirable result.

As a practical matter, the Attorney General maintains that litigation of this preliminary matter, involving the administration of the estate, will generate "greater expense than the alleged financial malfeasance referred to in the order", with the ultimate cost borne by the residual charitable beneficiaries.

There is considerable merit to this position. The statutory language providing that "the court may make a decree suspending, modifying or revoking letters issued to a fiduciary without a petition or the issuance of process" should be read to mean only that no formal notice is required to bring on a hearing for removal. It does not mean that the dismissal of an executor by the Surrogate may rest on less than compelling grounds; and it certainly does not mean that such action may be based on a record that is less than adequate to permit appellate review.

As a consequence of the failure to conduct an evidentiary hearing, the record on appeal is insufficient to permit adequate review of the Surrogate's determination. The "clear showing of serious misconduct that endangers the safety of the estate", and the convincing demonstration of misconduct that would warrant the removal of the corporate fiduciary is not supported by any evidence in the record before us. United States Trust Company, in its brief, asserts that there is no reported case in this jurisdiction in which a corporate fiduciary has been removed as an executor of an estate, and no such case has been brought to the attention of this Court by any other party.

It has long been recognized that a testator is entitled to designate who will settle her estate from among those qualified by statute. Case law therefore holds that "the power to revoke should be exercised sparingly". "Removal is a draconian step and the courts remove fiduciaries sparingly, typically when the estate fund has been jeopardized or the fiduciary has seriously impeded estate administration. Less drastic alternatives includes [sic] directing the fiduciary to post a bond, surcharging her for damages caused by her negligent or wrongful behavior, or denying her commissions".

The objections regarding coexecutor Mr. Lafferty's suitability to serve as executor are a criticism of his lifestyle. But none of his alleged shortcomings, from his alcoholism to his extravagance, is purported to have been unknown to the testatrix when she appointed him executor in her will. As suggested in a case, the rules respecting disqualification of a fiduciary are susceptible to more stringent interpretation, "particularly if he had been named as sole executor by the testator with full knowledge of his present condition". Where, as here, the individual executor is assisted by a capable corporate fiduciary, disqualification requires proof tending to show that he is incapacitated by the "want of understanding", which "implies an entire lack of mental capacity"
The objections regarding United States Trust Company center on unsecured personal loans extended to its co-executor. It is suggested that such a course was improvident and creates the appearance of impropriety. From a purely commercial perspective, however, it can hardly be regarded as unsound to loan money--even the better part of a million dollars--to a man receiving a salary of $100,000 a year, who is expected to receive trust income of $500,000 a year for the duration of his life and a commission of $5 million for his services as executor.

While the corporate fiduciary may have complicated its relationship with its co-executor by making him its debtor, it has not yet been established that its integrity in carrying out fiduciary responsibilities has been compromised in any way. As the Court stated in a case: "In the event that the co-executor's apparent conflict of interest should lead to misconduct--the presumption being strongly to the contrary--objectants will not be left without remedy.

"It would be a serious matter to make any claim of conflict of interest a ground for disqualifying designated executors. Not only would it threaten to substitute the legatees' desires and views for the views of the testator, it would also undoubtedly engender a multitude of proceedings. Few estates would be certain to be free from such attack. Many estates would be subjected to extended proof-taking to determine whether the claimed conflict in fact existed.

"Misconduct, not conflict in interest, merits removal of a fiduciary. The statute provides for resolving claims between the estate and its representative. This is reasonable. Any other view would automatically disqualify from appointment as executor a partner, a joint owner of property, a legatee, a creditor, a debtor, a distributee, a spouse, or one who is a party to an executory contract with the testator. Few would remain eligible."

It should be noted that no objection to the executors nominated by the decedent has been raised by the residual charitable beneficiaries, which will receive the bulk of the estate. Objections to the preliminary executors were raised by motion of an executor in the codicil to a prior will dated July 28, 1987. Other objections were raised by Irwin Bloom, decedent's former accountant, who is embroiled in a dispute with the estate over payments under a severance agreement. Still other allegations have been advanced by three disgruntled former employees of decedent who have commenced separate actions against each appellant. Their action against Mr. Lafferty was largely dismissed for failing to state a cause of action. Their action against United States Trust Company for defamation was dismissed outright for similar reasons, and sanctions were imposed against the parties and their attorney for bringing a frivolous lawsuit. The court noted: "It is apparent that plaintiffs' sole motive in bringing the suit against this defendant is to obtain a cash recovery from the deepest pocket available" With respect to allegations raised by the former employees against appellants and their counsel, the court stated: "Plaintiffs' efforts to convince this court that, along with coexecutors were 'Co-Fiduciaries working together to conceal massive criminal wrongdoing from the public' totally missed the mark, in light of the complete lack of factual support that exists for these extravagant claims"
While the Court has the highest regard for the temporary administrator appointed by the Surrogate and would consider him a far superior executor than him, that is simply not the criterion to be utilized in setting aside the testatrix's choice of fiduciary. As ample precedent makes clear, a testator's selection of an executor is not readily set aside. While the executor is often referred to as a butler, the relationship far exceeded that of employer and employee. As the limited temporary administrator pointed out in his investigative report, it was "akin to a tender and devoted mother-son relationship." Her accountant noted that the property and department managers began to report directly to him at a time when the testator was still making the ultimate decisions regarding her affairs. Removal of her chosen executor, without a hearing or the requisite proof of malfeasance and injury to the estate, is contrary both to the wishes of a sophisticated, strong-willed and determined testatrix and to fundamental principles of decedent-estate law.

The testator still enjoys the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will, and his solemn selection is not lightly to be disregarded. Appointment is not to be refused merely because the testator's selection does not seem suitable to the judge. The courts will not undertake to make a better will nor name a better executor for the testator."

A hearing is required to decide if any injury to the estate has been occasioned or is threatened by the alleged excesses of the executor or by the conduct of the corporate fiduciary. Accordingly, the order of the Surrogate should be reversed, without costs, and this matter remanded for findings of fact and conclusions of law whether grounds exist for the removal of the preliminary co-executors designated in decedent's will.

For cases involving an heir, whose right was deprived by reason of the provisions of an executed last will and testament, we have our Kings County Probate Attorneys, who will file an Opposition for its probate. If there was a question on the proper partition of the properties of a deceased, our Kings County Estate Lawyers will help you.

petitioner Claims Statute of Limitation Defense is not Valid

November 21, 2014,

A New York Probate Lawyer said the decedent died on May 1, 2004, leaving a will which was admitted to probate on July 7, 2004. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of ghem. The will further provides that the decedent's residuary estate be divided equally among his four children. Letters testamentary issued to his son.

A New York Estate Lawyer said that the son originally filed a First and Final Accounting of his proceedings covering the period May 1, 2004 through January 31, 2008. Thereafter, he filed a document entitled "First Interim Account of the Estate." This document covers the period from May 1, 2004 to January 31, 2008, the same period covered by the First and Final Accounting.
Another son opposed the probate. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent make a loan to him. In addition, the parties acknowledged that the petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.
After the trial, each party submitted a post-trial memorandum of law. The petitioner argues that the testimony at trial confirmed that oppositor admitted to his siblings at the meeting that he at one time owed his father the sum reflected on Exhibit 3. He did not dispute that he had owed the amount shown, but rather claimed that the money had been repaid, with the exception of $3,400.00. Thus, by claiming to have repaid these funds.

A Westchester County Probate Lawyer said that the petitioner further argues that Oppositor should be equitably estopped from asserting a statute of limitations defense because: (1) he knowingly and intentionally made a misrepresentation as to his possession of the receipts; (2) he made this misrepresentation with the intention that his siblings would refrain from bringing suit to recover the debt; and (3) he knew that he had never repaid the debts and did not have receipts. In any event, Petitioner claims that the partial payment of $3,400.00 revived the running of the statute of limitations.

Suffolk County Probate Lawyers said that the oppositor argues that Petitioner has failed to carry his burden of proof on the issue of the debt by establishing by a preponderance of the credible evidence that Oppositor owed any monies to the estate. Oppositor argues that the original account, verified by Petitioner, did not include the loan. Oppositor argues that the "entire sum and substance of support for the alleged 'loan' due from... [him] was a single page of hand-scrawled figures and notations, suffused with 'whiteout' material covering portions of it."

Oppositor also argues that the "Analysis of Distributions" prepared by the estate accountant and admitted into evidence as Exhibit 7 supports his position because it did not reflect any loans owed by Oppositor to the estate. He contends that the only monies he agreed to repay were monies owed by his wife's company not to his father's estate.

Generally, in determining whether a valid loan exists, a court will consider such things as, "whether notes or other written acknowledgments of indebtedness were executed, collateral was given, a method or time for repayment was fixed by agreement and if there exists any evidence of a systematic repayment". In the absence of an instrument evidencing the transaction, a factual determination must be made as to whether a loan was made. There is no presumption that money, which has been advanced, was advanced as a loan. In fact, it is presumed that the delivery of a check arises from an antecedent debt and is not a loan. The person alleging that a loan was made has the burden of proof.

With respect to the issue of the statute of limitations, "[t]here are two ways in which the statute of limitations may be tolled. One involves part payment and the other a signed acknowledgment". It is well-settled that an acknowledgment of a debt may be sufficient to toll the statute of limitations. As to an acknowledgment, "it must be a signed written acknowledgment of an existing debt which contains nothing inconsistent with an intention on the part of the debtor to pay it"

The parties agree that the burden is on Petitioner, as the fiduciary of the estate, to establish that the loan existed. Here, there was no evidence of a written note setting forth collateral or a method or time for repayment. Accordingly, in the absence of an instrument evidencing the transaction, a factual determination must be made as to whether a loan was made.

It is well settled that a trier of fact in an evidentiary hearing has the unique ability to make credibility assessments based upon its opportunity to view the witnesses, hear the testimony and observe their demeanor.

The court finds that Oppositor's testimony was contrived. Oppositor testified in generalities and displayed selective memory and forgetfulness. The court finds the testimony of Petitioner and Patricia to be more credible. Accordingly, the court finds that Petitioner has met his burden of proof that the decedent loaned Oppositor funds in the amount of $80,627.00 reflected on Exhibit 3.

As to Oppositor's statute of limitations defense, the court finds that the partial payment of $3,400.00 was a payment of an admitted debt, subject to upwards adjustment by Oppositor for the failure to provide receipts. Accordingly, the statute of limitations does not act as a bar to the collection of the debt.

As to the issue of commissions, commissions are not ordinarily payable until the entry of a decree settling a fiduciary's account. Taking a commission prior to the settlement of an account without securing court approval pursuant to SCPA 2310 or SCPA 2311 exposes the fiduciary to the potential of being charged. Ordinarily, the court will allow the commissions but will surcharge the fiduciary the amount of interest the estate lost because of payment, most commonly at the statutory interest rate under CPLR 5004, from the date the unauthorized commissions were taken until the entry of the decree settling the account.

This court has generally taken the position the taking of advance commissions without prior court approval is grounds for "automatic surcharge at the statutory rate of interest of 9%".
Considering all the circumstances in this case and the above principles, the court surcharges the executor 9% statutory interest on the amount paid of $10,000.00 from the date taken until the date of repayment.

Thus, Petitioner's testimony and account show that he (i) withdrew $10,000.00 in commissions without prior court order; (ii) made a $20,000.00 distribution to his company, which he ultimately repaid; and (iii) withdrew $66,000.00 of Oppositor's share as repayment for an alleged loan Petitioner made to oppositor and paid it to himself.

With respect to the issue of attorneys' fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in a case. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed.

With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter, this court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in a case. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

The attorney has submitted an affirmation of legal services and a supplemental affirmation of legal services which shows that the attorney rendered approximately 110 hours at the hourly rate of $350.00 per hour for a total of $36,000.00 plus a flat fee of $10,000.00 for preparation of the accounting. The services performed by counsel included services in connection with the probate of the will; services with respect to the sale of two properties owned by the decedent; review of the antenuptial agreement between decedent and his spouse; review of appraisals; drafting federal estate tax return; appearances at court conferences; preparation of the accounting, work in connection with the Supreme Court proceeding; preparation for trial and conducting of trial. In addition, disbursements incurred amount to $1,911.15 consisting of filing fees, certified mailings, process serving fees and fees for certificates of letters.

Considering all of the factors used to determine the reasonableness of fees, the court fixes the fee of counsel for the executor in the amount of $35,000.00, plus disbursements in the amount of $1,911.15.

Probate of a last will and testament is a court proceeding wherein a will is presented in order that the provisions embodied in it will be effective. Our Kings County Probate Attorneys here in Stephen Bilkis and associates will represent the executor of the will for court’s consideration. For other matters, you can also consult our Kings County Estate Lawyers.

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.

Here in Stephen Bilkis and Associates, we have Kings County Estate Attorneys who will draft your last will and testament. We will make it a point that your last wishes before your demise will be embodied in said will. For executed wills, our Kings County Probate Lawyers will bring your last will and testament at the court for its allowance.

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.

For cases involving probate of wills, you can consult our Kings County Probate Attorneys here in Stephen Bilkis and associates for a worthy and reliable advice. For matters involving questioning a will for probate, our Kings County Will Contest Lawyers will file your opposition before the courts of justice.