Nassau

Published on: May 25, 2015

Court Discusses Jurisdiction of Surrogate Court

by Stephen Bilkis

The petitioner in this custody proceeding is the natural mother of a child born in 1976 in Brooklyn. The respondent is the child’s paternal grandmother, who was appointed by as guardian of the person for the child in December 1977. The petition alleges that in May, 1977 the father took the child from the petitioner and gave it to his mother, and that petitioner was afraid to act because of previous assaults and threats. The petitioner-grandmother in the Surrogate’s Court proceeding (respondent herein) alleged the natural mother had abandoned the child, that she was a drug addict, and that her whereabouts were unknown. The father executed a waiver and consent to the appointment of his mother as guardian. No supporting affidavits as to the circumstances of the mother’s alleged abandonment, her addiction, or her disappearance were submitted; nor was an affidavit of diligent search provided. The letters of guardianship were issued on the ex parte application of the respondent herein, without notice to the mother, and apparently without a hearing.

On July 19, 1978 petitioner-mother filed a petition for custody of her child in the Family Court. The issue before this Court is whether it may assume jurisdiction in a custody proceeding, where guardianship of the person has been awarded in a prior ex parte proceeding in the Surrogate’s Court. The applicable law is to be found in Article 6 of the New York State Constitution, the Family Court and Surrogate’s Court Procedure Acts (hereafter “FCA” and “SPCA”) and pertinent cases.

Unlike the Supreme Court, neither court has general original jurisdiction in law and equity. The powers and jurisdiction of both the Surrogate and the Family Court Judge are limited. Article 6, Section 12 of the NYS Constitution states:

Published on: May 22, 2015

Court Discusses Will Provisions

by Stephen Bilkis

A New York Probate Lawyer said the holographic will of the testator, a physician, has been admitted to probate. The Court finds no difficulty in upholding the validity of the testator’s testamentary scheme as maintained by the two special guardians. Although inartistic in form the will makes testator’s intentions clear.

He first provided that if survived by his wife he gave all his ‘earthly possession to her without limitations whatsoever. In the event that I should outlive her then my estate shall be disposed of as follows.’ Then, stating that his estate was worth over $100,000, he directed the ‘administrators’ of his estate, later naming his two brothers-in-law as ‘executors and administrators,’ to pay all funeral and entombment expenses and all legitimate obligations outstanding. The rest of the will contains provisions for the use and sale of his residence, investment of estate funds, payment of annuities to his children, distribution of the whole estate to them or their children, and educational benefits to them, subject to various conditions. The testator died on January 24, 1954, survived by four children, 24, 22, 19 and 16 years old respectively at the time of his death. The three oldest children are married.

A New York Estate Lawyer said the Court construes the will as creating a single trust of his entire net estate, both real and personal, to be held until the youngest child, AB, becomes 22 years of age, to wit, July 29, 1960, or his earlier death. The alternative is not specified in the will but is supplied by law, thus avoiding invalidity of the trust by reason of a fixed termination date. The insertion of the date, July 29, 1960, was merely to indicate the date on which the youngest child would attain his twenty-second birthday and not to fix a date for the termination of the trust or that it was, in all events, to continue until that time. During the continuance of the trust or until the real property is sold any unmarried children may live in the residence mentioned in the will sharing the fixed charges and maintenance expenses of the property.

Published on: May 13, 2015

Petitioner Seeking Common Law Indemnification in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that according to sources, in the instant case, the complainant underwent surgery at a Medical Center, and the deceased served as his anesthesiologist. The anesthesiologist died on October 1, 2002 . On October 21, 2002, the anesthesiologist’s father, as executor of his estate, petitioned the Surrogate’s Court, to have the decedent’s will admitted to probate. The petition to admit the will to probate stated that the decedent died while a domiciliary of New York, and that someone was named in the will as successor executor. By decree, the will was admitted to probate, and sometime later, letters testamentary were issued to his father. Thereafter, the father died.

A Staten Island Probate Lawyer said that in 2003 the complainant commenced the main action against, among others, the Medical Center. In 2008, the Medical Center commenced the instant third-party action against the successor executor of anesthesiologist’s estate, seeking common-law indemnification. The successor, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the lawyers entered into a stipulation with the Medical Center, in which, the successor admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist, except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

A New York Estate Admininstration Lawyer said that by notice of motion, the successor-appellant’s newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the appellant’s affidavit stating that she had been designated as Successor Executor of the Estate of the deceased anesthesiologist, but the Estate was closed, and her role was extinguished in 2006. Her attorney also submitted an affirmation acknowledging that She had been personal representative for an Estate which was domiciled and probated in Colorado, but claimed that her appointment terminated in 2007, pursuant to Colorado law which provides that, “if no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates”. No documents were submitted in support of the appellant’s claim that her status as personal representative had terminated. In opposition, the Medical Center noted that “in Colorado to close an estate, assuming there was one in Colorado, you have to file papers. No such papers are annexed to the motion.”

Published on: May 9, 2015

Probate Court Conducts an Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that records show that in the instant case, the decedent died on August 27, 2003 a resident of New York. She was survived by her son and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to the executor for estate administration. The will provides that the residuary estate be divided equally between the two children but that the daughter, if unmarried, be given a two year right to occupy the decedent’s home provided she pay real estate taxes. The daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by him.

The court ruled that, as with any request for a fee, 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 fees rendered in the course of an estate regardless of a retainer agreement. 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”.

Published on: March 31, 2015

petitioner Seeks Interpretation of Tax Clause in Will

by Stephen Bilkis

The executors have requested construction of several provisions of Mrs. VK’s will admitted to probate in 1969.

I

Probate Lawyers said the principal problem concerns the meaning of the tax clause. Since the bulk of the estate consists of stock in a family corporation, construction of the tax clause in turn may require a section 303 Internal Revenue Code stock redemption to meet the tax obligation.

Published on: March 22, 2015

Court Discusses Rule of Perpetuities

by Stephen Bilkis

Probate Lawyers 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.

A New York 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.

Nassau County Probate Lawyers 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.

Published on: March 16, 2015

Court Discusses Validity of Bequest to Charity

by Stephen Bilkis

The committee of an incompetent moves for permission to file objections to the account of the Executor of the Last Will and Testament of the incompetent’s mother and for leave to obtain a construction of her will in respect to the validity of certain provisions for charitable bequests which, in his opinion, contravene the provisions of section 17 of the Decedent Estate Law. Said section provides that not more than half of an estate may be bequeathed to charity where the decedent is survived by a child or certain other close relatives.

Probate Lawyers said the incompetent’s mother died on July 11, 1956, leaving a Last Will and Testament which was duly admitted to probate by the Surrogate’s Court of Kings County on December 21, 1956.

By the terms of her will the decedent bequeathed one half of her residuary estate to eight charitable organizations in equal shares. The other half of her estate she bequeathed to a trustee in trust for the incompetent herein with directions to the trustee to pay the income to the Central Islip State Hospital for his care and maintenance and, in its discretion, to invade the principal to the extent of $150 per year. Upon the death of her son the trust was to terminate and the corpus thereof was to be paid to the State of New York in payment of past care and attention.

Published on: March 10, 2015

Parties Seek Leave to File Amended Objections in Probate Case

by Stephen Bilkis

In this contested accounting proceeding several applications seeking pre-trial relief have been submitted. Specifically said applications are as follows:

A. Application by objectants, by orders to show cause, inter alia, to amend objections and to join additional parties; and B. Application to cancel notices of pendency pursuant to Article 65 of the CPLR.

A New York Probate Lawyer said the decedent died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters testamentary issued thereunder to decedent’s spouse, the nominated executrix. Decedent’s will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a “trust fund” until they each attained the age of 23 years. Decedent’s daughters attained the age of 23 years in 1959 and 1961, respectively.

Published on: February 27, 2015

Petitioner Brings Action for Judicial Settlement of Trustee Account

by Stephen Bilkis

Probate Lawyers said that in this action for a judicial settlement of a trustee’s account and for a construction of the will and codicils of the testator, the trustee moves for summary judgment.

The testator died in September 1918, leaving a will and five codicils which were admitted to probate in January 1919. By his will and codicils, the testator gave his nephew, C, an outright legacy of $500,000 and created fifteen trusts. Eight of the trusts provided that upon the death of the life tenant the corpus of each trust was to be disposed of as part of the residuary estate which was left entirely to charities (hereafter charitable trusts). The remaining seven trusts provided in each instance on the death of the life tenant for the delivery of the remainder of such trust to non-charitable beneficiaries (hereafter non-charitable trusts).

By Article Twenty-Second of his first codicil, the testator provided that the charities to which the residue was lift should not receive any benefit from the estate until all other trusts and legacies were fully paid. The testator’s foresight in making this provision is demonstrated when it was determined shortly after his death that the estate could fulfill the legacies and trusts only to approximately ninety per cent thereof. By a judicial construction of this provision it was determined that as each charitable residuary trust terminated, no payment would be made to the charitable residuary legatees until the then continuing trusts and all previously terminated non-charitable trusts had been funded in full and the legacy to the testator’s nephew had been paid in full.

Published on: February 20, 2015

Petitioner Bring Motio to Construe Joint and Mutual Will

by Stephen Bilkis

Probate Lawyers said this is a proceeding to construe a joint and mutual will executed by decedent and his wife on March 5, 1956. The wife died on March 31, 1964 and said instrument was probated in this Court as her last will and testament. Shortly thereafter decedent was adjudicated an incompetent. He died on November 27, 1966 and the same instrument was probated as his last will and testament on June 2, 1967. The probate decree reserved the present construction question raised by decedent’s brother for determination upon the accounting or, as now, in an independent proceeding.

A New York Estate Lawyer said the following the customary exordium clauses, the testators by paragraph Second of the will devised and bequeathed ‘all our estates and effects unto the survivor of either of us.’ Paragraph Third provides:

‘In the event that we both die simultaneously or in the same catastrophe, we hereby devise and bequeath all the rest, residue and remainder of our estate and our effects whatsoever and wheresoever the same may be situated, whereof we may be seized or possessed, or to which we may be in any manner entitled, or in which we may be interested at the time of our decease, unto our dear beloved nieces C and G, to share and share alike absolutely and forever.’