Articles Posted in Estate Administration

Published on:

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:

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:

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:

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.

Published on:

This is a proceeding to construe the last will and testament of a testatrix who died on April 18, 2010, survived by five children. Her will, dated September 1, 2006 (the “Will”), was admitted to probate on July 2, 2010 and letters testamentary issued to petitioner, one of her children. Article SECOND of the Will established a credit shelter trust for her husband, with remainder to her children. Article THREE left the “rest, residue and remainder” of her estate to her husband outright. Her husband predeceased her and she provided in Article FOURTH that if her husband predeceased her, she left “all the rest, residue and remainder of my estate, real, personal and mixed and wheresoever situated”

The estate is sufficiently large to generate a New York State estate tax. Article FIFTH of the will provides that “All estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of my estate”. The executor asks that the Court construe the gift to real property to the devisee in Article FOURTH(A) as a preresiduary gift and the remainder clause of Article FOURTH(B) as the residuary estate. The executor brings this construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

In the Will in question, Article FIFTH directs that the payment of estate taxes be paid from the residuary estate. The problem is that the Will contains two residuary clauses. The first is found in the preamble to Article FOURTH, which disposes of the “all rest, residue and remainder of my estate, real , personal and mixed and wheresoever situated” of the testator’s estate if the testator’s husband predeceased the testator. The second is Article FOURTH(B), which purports to dispose of the “rest and remainder” of the testator’s estate after the devise of real property in Article FOURTH(A).

Published on:

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

The objectant asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was “told that the conference would be first.” She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she “signed for this.” Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.

In her moving papers, the objectant again asserts that one of the court attorney-referees is “in harmony” with petitioner’s attorney. This assertion was the subject of a prior decision (dec no. 666, October 30, 2007) of the court, which denied the objectant’s motion for disqualification of the court attorney-referee because the objectant did not assert any of the statutory disqualifications set forth in section 14 of the Judiciary Law to support her motion (see Schreiber-Cross v. State of New York, 31 AD3d 425 [2nd Dept 2006] and Moers v. Gilbert, 175 Misc 733 [Sup Ct, New York County 1941][court referee is held to the same standards as a Judge] and because the record did not reveal any other basis on which the court might be inclined to assign a different court attorney to the case.

Published on:

The petition presents an issue under the doctrine of ‘incorporation by reference’ as applied to wills. The petitioner a sister of the testator, presents an unwitnessed holographic instrument executed January 9, 1968 (‘January instrument’) and also a duly executed instrument (which has been proved as a will) dated February 20, 1968 (‘February will’).

The January holographic instrument necessarily must be denied probate. It was executed in New York; the decedent was not a member of the armed forces; it is unwitnessed. (EPTL 3–2.2, 3–2.1.) As already noted the February will has been duly proved. The January instrument disposes ‘of my entire personal estate’ to the petitioner.

The February will provides: ‘FIRST: I ratify and confirm all wills heretofore made by me at any time in every respect, except insofar as the same is inconsistent with the provisions of this codicil. SECOND: I direct that any monies realized from any and all Stocks and Bonds in my name be divided equally between: (listing three brothers and his sister petitioner herein).’

Published on:

This is a motion for an order directing the proponent, who is decedent’s widow, to appear for an examination before trial to enable petitioner to frame objections to the propounded instrument bearing date March 10, 1961, and for other relief.

The filing of a petition and service of a citation in a Surrogate’s Court proceeding is analogous to the service of a summons and complaint in an action brought in a court of record pursuant to the Civil Practice Act. Under Article 29 of the Civil Practice Act, § 288 et seq. and the Rules of Civil Practice, a party served with a summons and complaint may be afforded an examination of the complainant or other party in order to frame an answer (Cuban Telephone Co. v. Conklin, 196 App.Div. 463, 187 N.Y.S. 817). Movant, petitioner herein, is one of decedent’s distributees named in the propounded instrument, and in the probate petition and the citation served upon her. Movant is in the position of a defendant served with a summons and complaint, while proponent may be compared to a plaintiff in such an action. The fact that a pro forma answer in the nature of a general denial may be filed is no bar to such examination since a defendant may not know at the time whether he wishes to defend at all (Cuban Telephone Co. v. Conklin, 196 App.Div. 463, 465, 466, 187 N.Y.S. 817, 818, supra; Boyd v. Boyd, 276 App.Div. 1013 1014, 95 N.Y.S.2d 268, 269; Public National Bank v. National City Bank, 261 N.Y. 316-319-320, 185 N.E. 395-396; St. John v. Putnam, 128 Misc. 707, 220 N.Y.S. 146) . The present application is somewhat analogous thereto. The provisions of the Civil Practice Act apply to proceedings in the Surrogate’s Court (Surrogate’s Court Act, § 316).

A Suffolk County Probate Lawyers said that, the Surrogate has incidental powers with respect to ‘all matters subject to the cognizance of the court, according to the course and practice of a court having common law jurisdiction of such matters, except as otherwise prescribed by statute’. The Court of Appeals in one case, 248 N.Y. 67, at page 72, 161 N.E. 421, at page 423, said, ‘the powers that are specific shall hereafter be read as being ‘in addition to and without limitation or restriction on’ the powers that are general.’ Surrogate’s Court Act, § 20, subd. 11. Section 40 of the Surrogate’s Court Act confers jurisdiction upon the Court to administer justice in all matters relating to the affairs of decedents, as to any and all matters necessary to be determined in order to effect complete disposition of the matter.

Published on:

The decedent died on the 9th day of January, 1961, while a patient at the Wolcott Clinic, Wolcott, New York. Thereafter and on the 21st day of February, 1961, the son of the decedent, presented to this Court a petition praying that an instrument in writing dated February 5, 1955, and executed by the decedent purporting to be her Last Will and Testament, be admitted to probate by this Court, which petition alleged, that the said decedent at the time of her death was a resident of the Village of Red Creek, Wayne County, New York.

A Kings County Estate Administration Lawyer said, that thereafter and on the 11th day of July, 1961, the respondent, a niece of the decedent, a legatee under the instrument above recited, presented to this Court a petition putting in issue the domicile of the decedent at the time of her death and requesting a Hearing by the Court to determine the question above stated.

The Court also has before it the motion of the proponent questioning the standing of the respondent to raise the issue before the Court. The matters before the Court are jurisdictional. The one going to the right of petitioner to bring said petition; and the other as to whether the domicile of the decedent was within the jurisdiction of this County at the time of her death.

Published on:

This is a proceeding brought before the Surrogate’s Court, Kings County for judicial settlement of the first and final account of proceedings of the CM Bank, National Association, as trustee under Article “Second” of the will OF AGK, deceased, for the benefit of BMK.

This proceeding for settlement of a final trust accounting presents a question of construction occasioned by the bankruptcy of a charitable remainderman designated by the donee of a power of appointment.

On 3 March 1931, the donor of the power, AK, died. He left a 1927 will which was probated in the instant court. Under the will, the net estate shall be divided into three portions and placed in trust, each part to furnish income to one of his three children; and, upon the death of each child, the remainder interest in his or her trust shall be distributed “by valid and absolute disposition by will of such child” and in default of such exercise of the power, “as a part of the estate of such child in accordance with the statutes of descent and distribution of the State of New York.”

Contact Information