New York Probate and Estate Administration Lawyer Blog

Published on: February 1, 2023

Court considered whether a will should be probated even though it was not properly executed. Matter of the Estate of Zuppardo, 2020 NY Slip Op 50316(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

The case involves the estate of Carmelo Zuppardo, who passed away in 2018. Zuppardo’s will named his sister, Anna, as the executor of his estate and left his entire estate to his four nieces and nephews. However, the will was not properly executed, as it was not signed by Zuppardo in the presence of two witnesses, as required by New York law.

In light of the improper execution of the will, Anna Zuppardo initiated a will contest with the Surrogate’s Court, seeking to have the estate distributed according to the laws of intestacy. Under the laws of intestacy, the estate would have been distributed to Zuppardo’s surviving siblings, rather than his nieces and nephews.

Issue

Published on: January 30, 2023

Surrogate’s Court was asked to construe ambiguous language in a will. Matter of the Estate of Seymour, 2019 NY Slip Op 32469(U) (N.Y. Sur. Ct. 2019)

by Stephen Bilkis

The case involves the estate of Rita Seymour, who passed away in 2018. Seymour’s will left her residuary estate to her daughter, Karen, and her son, Richard, in equal shares. However, the will contained a provision that stated that Karen’s share of the residuary estate was to be held in a trust for her benefit, with the income to be paid to her in equal quarterly installments and the principal to be distributed to her in five equal annual installments.

Following Seymour’s death, Richard filed a petition with the Surrogate’s Court seeking a construction of the will. Specifically, Richard argued that the provision creating the trust for Karen’s share of the estate was ambiguous and that it should be construed to mean that Karen was only entitled to income from her share during her lifetime and that the principal should be distributed to Richard and Karen’s children upon Karen’s death.

Karen opposed the petition, arguing that the language of the will was clear and unambiguous and that she was entitled to the income from her share of the estate during her lifetime, with the principal to be distributed to her in five equal annual installments.

Published on: January 25, 2023

Court considered whether sons were entitled to receive a share of their father’s estate. Matter of the Estate of Rothenberg, 2019 NY Slip Op 51614(U) (N.Y. Sur. Ct. 2019)

by Stephen Bilkis

In New York, a personal representative is a person who is appointed by the Surrogate’s Court to manage the affairs of a deceased person’s estate. This individual is responsible for handling the deceased’s assets, paying debts, and distributing the remaining assets to the heirs or beneficiaries of the estate. The personal representative can either be an executor, named in the deceased’s will, or an administrator, appointed by the court if no will exists. The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries.

Background

The case involves the estate of Howard Rothenberg, who passed away in 2016. Rothenberg was survived by his wife, Barbara, and two sons, Marc and David. Rothenberg’s will left his entire estate to his wife, but included a provision that stated that if she predeceased him, the estate should be divided equally between his sons. However, Barbara did not predecease the decedent.

Published on: January 23, 2023

Court considered whether to disqualify someone from serving as an executor due to their criminal history. Matter of the Estate of Perlman, Matter of the Estate of McCarthy, 2020 NY Slip Op 20348 (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

In New York, a personal representative is a person who is appointed by the Surrogate’s Court to manage the affairs of a deceased person’s estate. This individual is responsible for handling the deceased’s assets, paying debts, and distributing the remaining assets to the heirs or beneficiaries of the estate. The personal representative can either be an executor, named in the deceased’s will, or an administrator, appointed by the court if no will exists. The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries.

Background

Kathleen McCarthy was a resident of New York and died in March 2019, without leaving a will. She was survived by her husband, Thomas McCarthy, and her two adult children, Brendan and Shannon McCarthy. The value of her estate was approximately $1.4 million.

Published on: January 18, 2023

Court determined that an unsigned unwitnessed will was not valid. Matter of the Estate of Perlman, 2017 NY Slip Op 30170(U) (N.Y. Sur. Ct. 2017)

by Stephen Bilkis

Matter of the Estate of Perlman is a case that highlights the importance of complying with the legal requirements for executing a will, particularly when it comes to the role of witnesses. In New York, the requirements for witnessing a will are governed by Section 3-2.1 of the New York Estates, Powers and Trusts Law. A will must be signed by the testator (the person making the will) in the presence of at least two witnesses. The witnesses must also sign the will in the presence of the testator and each other.

Background

The case involves the estate of Mary Perlman, who passed away in 2013. Perlman executed a will in 2006, which was admitted to probate after her death. The will named Perlman’s sister as the executor and beneficiary of her estate, and also made provisions for several other beneficiaries. However, the validity of the will was called into question due to concerns about whether it had been properly executed and a will contest was initiated.

Published on: January 16, 2023

Court found that beneficiary exerted undue influence on testator. Matter of Estate of Frieda Schreiber, 2020 NY Slip Op 33038(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

Under section 3-1.1 of the EPTL, a person has the capacity to make a will if they are at least 18 years of age and “are of sound mind and memory.” A person is considered of sound mind and memory if they have the ability to understand:

the nature and extent of their property;
the natural objects of their bounty (i.e., their family members and other beneficiaries);

Published on: January 11, 2023

Court considered how to distribute the remaining assets in a marital trust. Matter of Estate of June F. O’Connor, 2020 NY Slip Op 50595(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

In Matter of Estate of June F. O’Connor, the Surrogate’s Court considered a case involving the interpretation of a trust and the distribution of trust assets to the beneficiaries. The case is a reminder of the importance of clear and unambiguous language in trust instruments, and the potential consequences of unclear or ambiguous language.

Background

June F. O’Connor established a trust in 2003, which was later amended in 2007 and 2009. The trust instrument provided for the creation of two separate trusts upon the death of the settlor, referred to as Trust A and Trust B. Trust A was a marital trust for the benefit of the settlor’s husband, while Trust B was a family trust for the benefit of the settlor’s children.

Published on: January 9, 2023

Court determined that their was not sufficient evidence of lack of capacity or undue influence. Matter of Estate of Patricie Cabanne, 2020 NY Slip Op 51257(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

If the language of a trust in New York is not clear, it can result in a dispute among the beneficiaries, as well as between the beneficiaries and the trustee. If the language of the trust is ambiguous or uncertain, the court may be required to step in and interpret the trust and determine the settlor’s intent. This may result in an outcome that is different from what the settlor intended.

In addition, the ambiguity or uncertainty may also lead to confusion and uncertainty among the beneficiaries, as well as the trustee, which can further complicate the administration of the trust. It is therefore important to ensure that the language of a trust is clear and unambiguous in order to minimize the risk of disputes and confusion.

In the Matter of Estate of Patricie Cabanne, a disputed developed between classes of beneficiaries as to how to interpret the terms of the trust.

Published on: January 4, 2023

Surrogate’s Court found that the language of the will was clear and unambiguous, and that the testator’s intent was to benefit the George Ballas Trust. Matter of Estate of George Ballas, 2020 NY Slip Op 50978(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

In New York, the standard for will construction is that the court will seek to determine the testator’s intent, based on the language used in the will. This is known as the “plain meaning” rule. The court will interpret the language of the will to give effect to the testator’s intent, using the words in their ordinary and commonly understood meanings.

If the language of the will is clear and unambiguous, the court will give effect to the plain meaning of the words used. However, if the language of the will is ambiguous or susceptible to more than one interpretation, the court may consider extrinsic evidence, such as the testator’s declarations, to determine his or her intent. Overall, the goal of will construction in New York is to determine the testator’s intent as accurately as possible, and to give effect to that intent to the greatest extent possible.

In the Matter of Estate of George Ballas the court was asked to interpret the terms of a will with respect to the distribution of the residuary estate.

Published on: January 2, 2023

Medical evidence not sufficient to show lack of capacity. Matter of Estate of Paul Tucker, 2020 NY Slip Op 31604(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

Lack of capacity to make a will in New York refers to a situation where the testator (the person making the will) does not have the mental capacity to understand the nature and consequences of his or her actions when executing the will. In order to have the capacity to make a will in New York, the testator must have a general understanding of the nature and extent of his or her property, the natural objects of his or her bounty, and the effect of executing the will. Lack of capacity may result from a variety of factors, including mental illness, dementia, or other conditions that affect cognitive functioning.

In a will contest in New York, medical evidence can be used to prove that the testator lacked the capacity to execute the will. This may involve presenting medical records, expert testimony from treating physicians, or other evidence to establish the testator’s mental state at the time the will was executed. However, just like with any evidence, the court will determine whether it is sufficient.

Background