New York Probate and Estate Administration Lawyer Blog

Published on: June 14, 2017

Court Rules on Ante-Nuptial Agreement

Petitioner is the niece of the testator. In January, 1961, she and testator entered into an ante-nuptial agreement in which testator agreed to bequeath $25,000 to her. Testator and petitioner were thereafter married in accordance with the rites of the Jewish faith. In January, 1962, the marriage was annulled, the judgment awarding petitioner alimony. Testator died in April, 1965. Petitioner filed objections to probate of his will. Her objections were dismissed on the ground she was not a person interested in the probate proceeding. In April, 1966, petitioner sought a construction of the will. The court declined to entertain the petition inasmuch as the will was wholly unambiguous insofar as petitioner was concerned. The will does not contain the bequest of the $25,000 agreed to in the ante-nuptial agreement.

Petitioner moves to compel the executors to render and settle their account. She asserts she is a creditor of the estate because of the ante-nuptial agreement and also because of unpaid alimony. The executors dispute the enforceability of the agreement and claim the alimony was paid. In response petitioner states she rejected the tender of the alimony after this proceeding was commenced on the ground that the tender did not include interest.

The court construes the filing of the petition, based on the said claims of the petitioner, to be a sufficient presentation of the claims of which the executor had previous knowledge, and the executors’ answer to the petition to be a sufficient rejection of the claims within the intendment of section 208–a of the Surrogate’s Court Act.

Published on: June 14, 2017

Court Revisits Unusually Complicated Will Construction Issue

by Stephen Bilkis

The proceeding before the court is one for construction of paragraph “THIRD” of the will of the decedent. It has a long and checkered history before the court. The facts, not complex in themselves, but made so because of the number of parties and their constantly altering positions, unfortunately, requires review in detail to do justice to all. The legal issues presented are unusual and present questions of procedure as well as substance, not typically found in probate proceedings.

Under paragraph THIRD of his will, the testator bequeathed his residuary estate, valued upon the accounting at $50,393.65, to “The Franciscan Fathers, Christ the King Seminary, St. Bonaventure University, Olean, New York, with the request that High Masses be said for the repose of my Soul and the repose of the Soul of my said wife “. The question of the identity of the residuary legatee or legatees first arose on proceedings for judicial settlement.

On October 18, 1976, court was convened on the construction proceeding pursuant to order for the purpose of taking such proof and making such decree as justice requires pursuant to provisions of Sec. 1420, Subd. (1) of SCPA. The attorney for the executrix was called as a witness. His testimony, given without objection, was as follows: He was the scrivener of the will; he had known the testator and his wife for several years and had been their attorney on prior occasions; he had drawn the will of the testator’s wife as well as the testator; the testator’s wife for several years had been an employee of one of the Franciscan Friars at St. Bonaventure University; illness had compelled her to cease her employment immediately before the wills were prepared; under her will, the wife provided for a legacy to the Friars at St. Bonaventure University; the testator and his wife were very close; the provisions for the bequest of the residuary estate of the testator’s will had been influenced by his wife’s position.

Published on: June 7, 2017

Court Hears Proceeding to Settle Account of the Executor

by Stephen Bilkis

In a proceeding to settle the account of the executor of the decedent’s estate, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated July 21, 1989, as, after a nonjury trial, dismissed certain of her objections to the final account.

The son is the executor of the estate of his father, the decedent herein. According to the terms of the decedent’s will, the executor was to receive a specific bequest of corporate stock, valued at approximately $144,000.

The remainder of the estate, valued at approximately $673,000, was to be equally divided between the son and his sister, the appellant. However, filed several objections to the probate of the will. Prior to the trial of her objections, a stipulation was entered into in open court whereby, in consideration of the son paying her $75,000, she agreed to withdraw her objections to the probate of the will. Subsequently, an amended final account was filed by the son. The daughter objected to this amended account on the ground, inter alia, that it credited the estate with paying the $75,000 settlement. This had the effect of increasing her pro rata share of the estate taxes. After a nonjury trial on this issue, the Surrogate’s Court concluded that the stipulation of settlement required the $75,000 to be paid by the estate and not the son personally. We disagree.

Published on: June 7, 2017

Petitioner Seeks Final Judicial Settlement of Accounts

by Stephen Bilkis

Petitioner seeks a final judicial settlement of its accounts as Executor under the last Will and Testament of the deceased. As a part of the judicial settlement, petitioner requests this Surrogate’s Court to direct by appropriate order that future payments of support to decedent’s surviving first wife be made an obligation of the Trustee of decedent’s residuary estate and payable from the income and, if necessary, the principal of that residuary trust.

It appears without dispute that by an agreement dated October 10, 1952, decedent assumed an obligation to pay the sum of $300 a month to his first wife, for her support. It was provided that such monthly payments were to continue for the lifetime of the first wife. The Executor properly concluded that the obligation for payment survived the decedent and was binding upon the estate. The agreement is valid and enforceable. The accounts of the Executor disclose that the required payments have been considered as periodically accruing debts and have been paid monthly by the Executor throughout the administration of the estate.

In this accounting proceeding, provisions for future payments of support to decedent’s first wife are required. It is axiomatic that these provisions must comply with the applicable statutes and fairly resolve the equities of all parties concerned. Proceeding within this general framework, an examination of relevant statutory provisions is first in order.

Published on: May 31, 2017

Plaintiffs Seek Declaration of Rights Regarding Father’s Estate

by Stephen Bilkis

In this action for a declaratory judgment, plaintiffs appeal from a judgment where, following a trial on stipulated facts, the court dismissed the complaint. Plaintiffs are the only children of the husband and wife, both now deceased. The wife died first and the husband thereafter. Defendant is the second wife and the other defendant is the executor of the last will and testament of said husband.

Upon the death of the husband, plaintiffs commenced the within action seeking a declaration of their rights with respect to the husband’s estate. The complaint consisted of four causes of action, as follows: (1) To impress a constructive trust upon certain real property located at 141 Forest Green, Staten Island. (2) To void the right of election filed by the second wife under section 5-1.1 of the Estates, Powers and Trusts Law as surviving widow of the husband. (3) To impress a constructive trust upon the proceeds of a pension plan the husband had with the City of New York, which were paid to the second wife as designated beneficiary at the husband’s death. (4) To impress a constructive trust upon funds which prior to the death of the first wife had been in savings and/or checking accounts in the joint or individual names of the husband and wife, and upon other personal property which had been in the joint and/or individual names of the spouses prior to wife’s death, which the husband thereafter transferred to himself and the second wife as joint tenants.

On October 17, 1967 the husband and wife had executed a joint will which provides, in pertinent part, as follows: We, his wife, in consideration of the agreement of each of us to dispose of our property as hereinafter set forth, do hereby make, publish and declare this to be our joint Last Will and Testament. First: We give to the survivor of us all our property, both real and personal. Second: After the death of the survivor of either of us, all our property, both real and personal, we give devise and bequeath unto our children (plaintiffs herein).

Published on: May 31, 2017

Tenant Contends that Petitioner lacks Power to Prosecute Hold-Over Proceeding

by Stephen Bilkis

This is a holdover Landlord-Tenant summary proceeding. The tenant has moved to dismiss the petition pursuant to RPAPL 721 and 741 asserting that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

This case was originally returnable on September 13, 2012. Attorneys for both sides appeared. Tenant’s attorney asked that the case be dismissed and, upon the Court’s reluctance to do so without a record, requested a motion schedule. The Court set the schedule to require that the motion be filed by September 20 with answering papers due September 23 and set October 4 as a control date. Despite this schedule, tenant made no request for any extension of time and made no motion until filing papers on September 28.

The Legislature created summary proceedings in 1820 in order to give landlords a “simple, expeditious and inexpensive means of regaining possession of a premises in cases where the tenant wrongfully held over without permission after the expiration of his term.” Expeditious disposition is so much of a priority that the statute prohibits adjournment of trials by not more than ten days, except by consent of all parties. RPAPL 745 (1). In keeping with this priority, the Court set a prompt, but viable, schedule for the proposed motion. Tenant failed to file the motion in a timely manner or seek consent to extend the schedule. Accordingly, the motion is denied as untimely.

Published on: May 24, 2017

Petitioner Requests Settlement of Accounts of Estate

by Stephen Bilkis

This matter comes before the Court by reason of the objection of certain legatees of the decedents herein to that portion of the intermediate accounts filed by the Executor which allocates certain fire insurance proceeds in the sum of $16,813.20 for ultimate distribution to a church.

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

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

Published on: May 24, 2017

Court Seeks to Determine if a Loan was Taken out by Estate

by Stephen Bilkis

This is a probate case where 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 the children. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to Executor on July 7, 2004.

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 which covers the period from May 1, 2004 to January 31, 2008, the same period covered by the First and Final Accounting. The Interim Account was verified by the son on February 18, 2009, nearly one year after the First and Final Account.

Another son filed objections to the accounting which raised several issues. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent make a loan to the oppositor In addition, the parties acknowledged that administrator son 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.

Published on: May 14, 2017

Court Appoints Temporary Administrators

by Stephen Bilkis

In this estate proceeding, an Order and decree, Surrogate’s Court, New York County, entered on or about May 22, 1995, which removed the preliminary coexecutors, and appointed the lawyer and a Trust Company as temporary administrators, affirmed, without costs.

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. We note that the coexecutors were not prejudiced in any manner by the informality of the investigation and report completed by limited temporary administrator, since the Surrogate’s decision expressly disclaimed reliance on the report’s unproven allegations.

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”.

Published on: May 14, 2017

Court Discusses Sufficiency of Evidence

by Stephen Bilkis

This is an estate case where Defendant moves this court to inspect the Grand Jury minutes and to dismiss various counts of an Indictment on several grounds including legal insufficiency. Defendant also claims that certain counts are duplicitous, provide insufficient notice, and are too vague. Defendant moves to dismiss three counts of Criminal Contempt in the Second Degree on the grounds that he had not been served with any order of protection in the days of the alleged violations.

The Defendant was arrested on July 21, 1997 and charged in a felony complaint with several counts each of Criminal Contempt in the Second Degree, Aggravated Harassment in the Second Degree, Harassment in the Second Degree and Attempted Coercion in the Second Degree. At the time of his arraignment on the felony complaint, the defendant did not file notice of his intention to testify before the Grand Jury. Defendant was subsequently indicted by the Grand Jury for Grand Larceny in the Second Degree, Grand Larceny in the Fourth Degree, Aggravated Harassment (24 counts), Criminal Contempt in the Second Degree (3 counts), Harassment in the Second Degree (2 counts), Attempted Coercion in the First Degree, Attempted Coercion in the Second Degree, and Menacing in the Second Degree.

According to the Grand Jury testimony, these charges arose out of numerous incidents occurring between August 1996 and July 1997. Beginning in August 1996, the defendant, 44, was living with his 77-year-old mother, the complainant in this case. He lived with her until June 26, 1997. Defendant’s mother gave the defendant an allowance on a weekly basis while he was living with her. This allowance was given reluctantly, and allegedly coerced through threats and physical intimidation by the defendant.