Articles Posted in Estate Administration

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NY Slip Op 05266

The petitioner brought this case to enforce an oral agreement that would be void because of the statute of frauds. The petitioner’s grounds for this action are unconscionability of the statute of frauds. The court agrees that when promissory estoppel is satisfied it would be unconscionable and egregious to rely on the statute of frauds. Nonetheless, the court concludes that the petitioner can’t rely on this doctrine because the application of the statute of frauds would inflict injury on the petitioner and would be unfair. The court felt that while it would be unfair, it was not unconscionable.

The decedent owned an apartment building. His grandsons contend that before 2006, the had helped their grandfather with maintenance and snow removal on the property. Later, the grandfather asked the petitioners about taking over management duties of the property.

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In this case the Surrogate’s Court considers the whether to grant a petition for guardianship of a person who suffers from intellectual and physical disabilities and is unable to care for herself.

Petitioner Laut appeals the denial of a petition she filed under SCPA Article 17-A for guardianship of her disabled sister. The sister has suffered from severe, permanent disabilities all her life. She suffers from cerebral palsy and mental retardation and requires 24-hour care. She is unable to feed herself, is non-ambulatory, and is non-verbal. Using the Bayley scale of infant and toddler development, the sister has been determined to have a developmental equivalent of a 4-month-old.

The petitioner’s parents had cared for her sister her entire life. However, they both died in 2014. While the petitioner wanted to care for her sister after their parents’ deaths, she stated that she was unable to fully do so because she did not have legal guardianship over her sister. For example, she was not able to arrange for a lease for the sister’s apartment and she was not able to maintain the sister’s supplemental nutritional program. In denying her petition for guardianship, the Surrogate’s Court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate.

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In this probate case the court considered the question as to whether it has the authority to consider extrinsic evidence in the determining how to interpret ambiguous terms of a last will and testament.

In her last will and testament, decedent Bruce made a provision as to the disposition of her a portion of her estate, the literal meaning of which would make the provision invalid. In her will, the decedent sought to exercise her power of appointment directing the trustees of two separate trusts, to distribute the assets in her residuary estate to the LB Foundation. A person who writes a will or creates a trust can give his or her beneficiaries a power of appointment, which enables the beneficiaries to direct where their share of the estate or trust goes at their death. In this case, a 1969 trust of which the decedent was a beneficiary gave the decedent the power to determine where her share of the trust would go upon her death. However, due to the wording of the language of the decedent’s will, the literal reading of decedent’s request is not valid because it exceeded the powers that were granted to her in the 1969 trust.

Upon considering summary judgment motions from both the petitioner and the respondent, the Surrogate’s Court noted that the testator’s intent is deciphered from a sympathetic reading of her last will and testament. Accordingly, the court must read the distribution plan that appears to be in the will in light of the testator’s intention. It is clear that the decedent’s intention was to provide property to the LB Foundation. It follows that it did not make sense for her to make a disposition of property that she knew would be invalid.

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The respondent MJP holdings moves for an order dismissing the petition for lack of subject matter jurisdiction, and because a prior action is pending for the same issue in a different court.

Despite the fact that the proceeding was heard on 6/1/18, the history of this case goes back 40 years, starting with the death of the decedent’s grandmother CP. That litigation was only settled in 2017. Her 2 children have passed away. The estate of one child, J, is in litigation. The case with the other child, M, is being litigated as well.

The parties involved here are the petitioner, who is the executor of the decedent’s estate, the grandchild of the decedent, and daughter’s husband, and MJD Holdings.

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In this case the Surrogate’s Court had to consider issues related to a contested guardianship under Mental Hygiene Law Article 81 and invalidating a property conveyance by the person who is the subject of the guardianship. Mental Hygiene Law Article 81 provides that upon petition, the Surrogate’s Court can appoint a guardian to handle the personal and/or financial affairs of a person who has been found to be incapacitated and would suffer harm in the absence of a guardianship.

Here, it was discovered that R. Nurse transferred 50% ownership in real property to his stepson, Dacres. R. Nurse’s biological children, M. Nurse and H. Nurse, stepped in and petitioned the court to be appointed co-guardians of R. Nurse. They also requested that the court void the transaction that conveyed R. Nurse’s property to Dacres. At the hearing, evidence was produced that confirmed that R. Nurse had dementia. Further, there was clear evidence that R. Nurse was incompetent at the time that he signed the deed and that he was subject to undue influence. Thus, the court voided the deed and granted the petition of M. Nurse and N. Nurse to be appointed co-guardians. Dacres appealed.

In ruling in favor of the petitioners, the court noted that the general rule is that it is assumed that a person is competent. The burden is on the petitioner to prove with clear evidence that the party is not competent. When it comes to voiding a property conveyance, the burden is on the petitioner to show that the party was not competent at the time of the conveyance.

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In this probate proceeding the court had to address an issue related to the construction of terms in the will related to the restriction on the disposition of real estate.

Decedent M. Bonanno died in 2002, leaving a last will and testament dated August 1, 1983. The Surrogate’s Court admitted the will to probate. The will provided that specific real estate that she owned in Queens go to her 4 children, and that it not be sold while her children remained single, and while any of them still lived in the property. It also stated that when the property was sold, the proceeds would be divided equally among her four children. Two of the decedent’s children petitioned the court for a construction of the provisions of the will related to the real property. They sought an order stating that each of 4 sibling owns a ¼ share of the property in fee simple without restriction. After filing the petition, the petitioners also filed a motion of summary judgment on the petition. The Surrogate’s Court denied the motion and the petitioners appealed.

In a summary judgment motion, the moving party has the burden of making a prima facie showing that based on the undisputed material facts, he or she is entitled to judgment as a matter of law. If the moving party is able to do this, then the burden shifts to the opposing party to rebut the moving party’s motion and show that there are material facts in dispute.

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In this case the New York Surrogate’s Court considered a request to modify a testamentary trust to change the name of a beneficiary, based on the doctrine of “cy pres.” The cy-près doctrine allows the court to amend the terms of a charitable trust in order to keep the gift from failing. The doctrine requires that the amendment be consistent with the donor’s original intent.

The decedent died on April 13, 1968. Her will was admitted to probate on January 16, 1969. The will includes provisions naming various charities as beneficiaries, including: The Carmelite Sisters of the Aged and Infirmed, The Catholic Foreign Missionary Society of America (Maryknoll Fathers), The Nursing Sisters of the Sick Poor, The Monastery of Our Lady of Mt. Carmel, and The Confraternity of the Precious Blood. Each of these organization received a specific bequest of $5,000. The will also left the entire residuary estate to a trust for the benefit of Catholic Child Care Society and provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The trust has a remaining principal of approximately $90,000.

The petitioner, Catholic Child Care Society of the Diocese of Brooklyn, requests that the court modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of the testamentary trust established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL § 8-1.1. At the time the will was admitted to probate, Catholic Child Care Society operated two programs: St. John’s Residence for Boys and St. Joseph’s Children’s Services. In 1995 St. John’s Residence for Boys incorporated separately but continued to work with Catholic Child Care Society. In 2001, the petitioner ceased doing business. The children for whom petitioner had been providing services were transferred to other authorized agencies throughout New York City. As a result, the petitioner has filed this application pursuant to EPTL§ 8-1.1 to modify the trust. Section 8-1.1 is the statutory codification of the common law doctrine of cy pres. It gives authority to the Surrogate’s Court to direct a disposition to be applied in such manner that will most effectively accompany its general purposes.

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This case involves an appeal to a Surrogate’s Court decision related to the accounting filed by an executor. One of the responsibilities of an executor is to keep accurate records of all of the money coming into an estate and all money distributed from the estate. The executor must submit a final accounting to the Surrogate’s Court which will review the records and ensure that the executor handled the estate assets properly. An interested party, such as a beneficiary, has the right to object to an accounting.

M. Schneider is the executor of the estate of his father, S. Schneider. According to the terms of S. Schneider’s will, his estate went to his two children, his son, M. Schneider and his daughter, J. Kotcher. M. Schneider was to receive corporate stock, valued at approximately $144,000. The remaining estate, valued at approximately $673,000, was to be equally divided between M. Schneider and J. Kotcher.

Kotcher objected to probate. However, Kotcher ultimately withdrew her objections after M. Schneider agreed to pay her $75,000. M. Schneider then filed an amended final account, and Kotcher objected to it because it credited the estate with paying the $75,000 settlement. By crediting the estate with paying her the $75,000, her pro rata share of the estate taxes increased. Kotcher asserted that the $75,000 was paid by M. Schneider personally, and not the estate. The Surrogate’s Court disagreed, concluding that the stipulation of settlement required the $75,000 to be paid by the estate and not Marvin Schneider personally. Kotcher appealed. The appellant division found in favor of Kotcher.

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In this case the court is asked to enforce an agreement made by spouses in a joint will that required the surviving spouse to leave any property received under the will to the couple’s children.

This case involves a dispute over the estate of R. Wagner and T. Wagner. R. Wagner and T. Wagner were married. T. Wagner died and R. Wagner married A. Wagner. Then R. Wagner died, leaving A. Wagner as the surviving spouse. R. Wagner left a will that named Runstorf as the executor. This case is an action brought by the children of R. Wagner and T. Wagner for declaratory judgement related to certain property that was originally owned by R. Wagner and T. Wagner. The action named A. Wagner and Runstorf as defendants. The Supreme Court dismissed the complaint. The plaintiffs appealed.

In the complaint, the plaintiff asked the court to impress a constructive trust upon real property located in Staten Island, to void A. Wagner’s right of election, to impress a constructive trust upon the proceeds of A. Raymond’s pension plan, and to impress a constructive trust on the funds in savings and checking accounts that were owned by T. Wagner and A. Wagner jointly.

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