New York City

Published on: March 28, 2015

Court Interprets Will Provisions

by Stephen Bilkis

A Probate Lawyers said that, on May 29, 1963, decedent executed his Will, which through paragraph SIXTH reads as follows: ‘I, of the City of Syracuse, County of Onondaga and State of New York, do make, publish and declare this to be my last Will and Testament, hereby revoking all wills and codicils at any time heretofore made by me. ‘FIRST: I give and bequeath to my wife if she survives me, all household furniture and furnishings and other household goods and all automobiles owned by me at the time of my death. ‘SECOND: I give and bequeath to my son if he survives me, all clothing, jewelry and personal effects owned by me at the time of my death. ‘THIRD: I give and bequeath to my son if he survives me, all stock and any other interest in Incorporated owned by me at the time of my death. ‘FOURTH: If my wife survives me, I direct my executors to set aside a portion of my estate equal in value to (a) one-half of the value of my adjusted gross estate as finally determined for Federal estate tax purposes, less (b) the value of all interests in property which pass or have passed to my wife, but only to the extent that such interests are for the purposes of the Federal estate tax included in determining my gross estate and allowed as a marital deduction.

‘I give, devise and bequeath the said portion of my estate to my trustees, IN TRUST, NEVERTHELESS, to hold, invest and reinvest the same, to collect the income therefrom and to pay to my said wife all of the net income therefrom during her life in quarterly installments and, in addition, to pay to my said wife, at any time and from time to time, such part or parts of the principal of this trust as my corporate trustee shall deem necessary for the comfortable maintenance, support and welfare of my said wife. Upon the death of my said wife, the then principal of this trust, if any, is to be paid out and distributed as my wife may appoint by her last Will and Testament (specifically referring to this power of appointment) outright or otherwise, in favor of her estate or any appointee or appointees. If said power of appointment is for any reason not validly exercised by my wife, in whole or in part, then upon her death such portion or all of the principal of the trust, or such interests or estates therein as shall not have been validly appointed by her shall be transferred, conveyed, paid over and distributed by my trustees to my daughter Shirley Haley Hollis if she is then surviving or, if she is not then surviving, to her then surviving descendants per stirpes, or, if none, to my then surviving descendants, per stirpes.

A New York Estate Lawyer said “Notwithstanding anything to the contrary contained in this Will, I direct (a) that in establishing this trust for my wife, there shall not be allocated to the trust any property or the proceeds of any property which would not qualify for the marital deduction allowable in determining the Federal estate tax on my estate or any property or the proceeds of any property includible in my gross estate for Federal estate tax purposes and also subject by reason of my death to any inheritance tax, transfer tax, estate tax or other death duty in any foreign country or state, province or other political subdivision thereof; (b) that the trustees of this trust shall not retain beyond a reasonable time any property which may at any time be or become unproductive nor shall they invest in unproductive property, and (c) that none of the powers granted to the trustees by this Will shall be exercised in such a manner as to disqualify this trust or any part thereof from the marital deduction allowable in determining the Federal estate tax on my estate.

Published on: March 17, 2015

Court Judicially Settles Final Accounts of an Estate

by Stephen Bilkis

The two cases below are about probate proceedings.

Probate Lawyers said in a probate proceeding to judicially settle the final accounts of an estate, the successor administrator, KG, appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Kings County (Lopez Torres, S.), dated December 3, 2009, as, after a nonjury trial, denied his objections to and judicially settled the final account of KTLG, the original administrator of the estate, and granted the objections of Wendy Walton to his amended final account.

In an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate (see Matter of Tract,284 AD2d 543; Matter of Schnare,191 AD2d 859, 860). While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete (Matter of Tract, 284 Ad2d at 543; see Matter of Campione,58 AD3d 1032, 1034; Matter of Schnare, at 860).

Published on: March 14, 2015

Widow Makes Motion to Disqualify Attorneys

by Stephen Bilkis

The widow of the testator has made this motion to disqualify the attorneys for the executors and their counsel, to restrain them from participating in the affairs of the estate and from continuing to appear for the executors in matters affecting the estate, and to require said attorneys and their counsel to restore to the estate all sums of money they have received for legal services or otherwise.

New York Probate Lawyers said that testator’s will was duly admitted to probate and letters testamentary issued to his three children as the nominated executors therein. By the provisions of his will testator bequeathed $5,000 to his widow and provided other benefits for her, not necessary of enumeration, and bequeathed and devised the residue of his estate, in equal shares to his three children whom he named as executors. The widow filed a notice of election to take her intestate share in the estate as provided by Section 18 Decedent Estate Law, and instituted a proceeding to determine the validity of such election. The matter was settled by agreement wherein the widow was to receive 28 1/2% of the net estate with the balance being distributable to testator’s children in equal shares.

Thereafter the widow instituted a proceeding to compel the executors to account and on their failure to file the account as directed made a motion to punish from for contempt. The account was filed and objections thereto were filed by the widow and examinations of the executors were allowed with reference to such account. In addition the widow sought to compel the executors to account in the estate of testator’s first wife under the terms of whose will testator was the income beneficiary of a trust of the residuary estate with the remainder of such trust bequeathed and devised to testator’s and his first wife’s three children, the executors of testator’s estate.

Published on: March 12, 2015

Appellant Files Motion to Compel Petition for Respondent to Account

by Stephen Bilkis

New York Probate Lawyers said an RF died intestate in December, 1947 and letters of administration were issued to his widow, the respondent, in the same month. In September, 1948 respondent filed an income tax return for 1947 on behalf of the decedent. During the return’s audit, respondent executed three assessment waivers, the last of which extended to June, 1954 the time of the appellant, United States of America, for the making of an assessment. In May, 1954 a deficiency assessment for income taxes was made by appellant in the sum of $32,440.09 and, in August, 1954 the District Director of Internal Revenue filed with the respondent a notice of claim for payment of that sum. The respondent neither paid nor rejected appellant’s claim.

In 1962 appellant filed a petition to compel respondent to account. In defense, respondent alleged the six-year limitation period provided in the 1939 Internal Revenue Code. Surrogate Moss, as a matter of law and in the exercise of discretion, denied appellant’s petition.

The Surrogate conceded that, under former section 211 of the Surrogate’s Court Act, the filing of a notice of claim and its rejection were deemed the commencement of a special proceeding, effectively tolling State statutes of limitation.

Published on: March 7, 2015

Petitioner Brings Action for Settlement of Trustee’s Account

by Stephen Bilkis

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.

Probate Lawyers said 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 21, 2015

Court Hears Case Moving for Specific Performance of Contract to Purchase Land

by Stephen Bilkis

Probate Lawyers said the action by Y against BN for specific performance of a contract to purchase real property. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Affirmed.

This action was brought to compel the specific performance of a contract to purchases land. The defense was that the title was not merchantable. D was the owner of a tract of land in the city of Brooklyn comprising the land in question. On the 11th day of March, 1854, he conveyed the same to J and G. On the 26th of September thereafter they conveyed the same to H by separate deeds, each of an undivided half, which were identical in form, containing the same recitals.

A New York Estate Lawyer said that the quotations hereinafter made are taken from the J deed. It contained the following: ‘Whereas, the said J and G afterwards by deeds sold and conveyed certain portions of the entirety of the premises hereinafter described to TN, WA, and BY by separate deeds of conveyances, and took back from the said TN, WA, and BY, severally, bonds and mortgages for the respective payments of the several sums therein mentioned as securities, and for the purchase moneys thereof, reference to the several deeds being hereunto had will more fully appear; and whereas, the party of the second part has agreed to purchase of the said J his portion of the entirety of the premises hereinafter mentioned, subject, however, to the several equities aforesaid.’

Published on: February 16, 2015

Court Deals with Conflicting Interpretation of a Will

by Stephen Bilkis

A Probate Court said records reflect that this construction proceeding raises questions in respect of the validity of a trust under decedent’s will and the distribution of its remainder. The decedent died survived by his widow and six children. The will was admitted to probate and Letters testamentary and letters of trusteeship were duly issued. Complainants are the issue of the testator’s son. They urge that the trust created under paragraph ‘Fourth’ unlawfully suspends the power of alienation and hence that the principal thereof must be distributed as in intestacy; or, alternatively, that the language of the will should be construed so as to include their father, and his issue, as remaindermen entitled to a share of the principal of the trust upon its termination. They allege that the trustee of the trust under the will of their father has refused to bring the proceeding after demand. The answer interposed by the surviving executor and trustee denies the allegations of the petition, sets forth several defenses thereto including among others that complainants are not proper parties in interest, that the will provision does not require construction and that by reason of article ‘Seventh’ of the will constituting an ‘in terrorem’ provision, they have no status in these proceedings.

A New York Estate Lawyer said the court noted from the first paragraph of article ‘Fourth’ that the use of the words by testator of ‘my children’, naming them specifically clearly showed that he did not want the complainants’ father to have any interest in the estate. Similarly, although the contingencies expressed therein did not take place, the immediately following two paragraphs of article ‘Fourth’ again confirmed this intent by referring to the children ‘hereinbefore mentioned’ and by repeating the words my ‘said children’, ‘said child’ and ‘issue of said child’. Article ‘Second’ of the will recites that no provision is made for testator’s son, nor his wife, nor any other member ‘of his family’ by reason of the fact that testator in his lifetime entered into an agreement with his son, giving him and agreeing to give him a substantial sum of money ‘which sum he is presently receiving and will receive under said agreement and therefore no provision whatsoever is made for him in this Will in any way with respect to any trust fund hereinafter established.’

Manhattan Probate Lawyer said the status of complainants as proper parties in interest to bring this proceeding and to seek a construction of the will was determined by this Court and such determination is adhered to. With respect to the ‘in terrorem’ provision of article ‘Seventh’, the Court holds that it is not applicable to a distributee who seeks a construction of any of its provisions. Decedent’s widow, upon whose life the primary trust is measured, died on October 15, 1955. One of the sons, whose life measures the secondary term, is living. Decedent’s grandchild, during whose minority a further term was to be measured, attained her majority on May 1, 1959. Were the said son to have died during the secondary term of the trust and prior to grandchild’s attainment of her majority, the continuation of the trust during the minority of the grandchild would have been an unlawful suspension of alienation. What then is the effect of such possible unlawful suspension in the circumstance that the grandchild has attained her majority.

Published on: February 10, 2015

Plaintiff Brings Motion to Substitute Executor

by Stephen Bilkis

Probate Lawyers this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.

The branch of the motion to substitute the executrix as plaintiff in this action is granted.

Published on: February 6, 2015

Court Hears Claim Brought by State Department of Mental Hygiene

by Stephen Bilkis

Probate Lawyers said that this issue is a frequently recurring problem in the Surrogate’s Courts, that of claims against estates or beneficiaries of estates by the State Department of Mental Hygiene.

Testator M died August 9, 1975 leaving his widow S as his sole distributee. His will executed in 1968 and admitted to probate provided a trust of one-half his net estate for S, remainder to two named cousins. (The cousins were also residuary legatees) As nominated executors, they have been issued letters. The gross estate is approximately $75,000.

A New York Estate Lawyer said that in 1968, shortly after the execution of the will, S was institutionalized and except for brief periods has continued as a patient in one of the institutions in the Department of Mental Hygiene (Department). A Committee has been appointed for her. The Committee is holding assets (apart from any beneficial interest in her husband’s estate) of over $100,000.

Published on: January 28, 2015

Petitioner Seeks to Probate Last Will and Testament

by Stephen Bilkis

A Probate Lawyer said that according to a Kings County Estate Attorney, in a contested proceeding to probate the last will and testament of J, also known as AJ, the objectants appeal, as limited by their brief, from so much of an order of the Surrogate’s Court, Kings Count, dated December 19, 2002, as, upon a decision of the same court, dated October 18, 2002, (a) granted those branches of the proponent’s motion which were for summary judgment dismissing the objections alleging lack of testamentary capacity, undue influence, and fraud, (b), in effect, denied that branch of their cross motion which was to compel disclosure, (c) failed to determine that branch of their cross motion which was to compel production of a handwriting exemplar of the testator, and (d), in effect, directed a separate proceeding to aid in the disposition of that branch of the cross motion of the objectant BJ which was to permit her to exercise her alleged right of election.

A Estate Lawyer said that the portion of the appeal which is from so much of the order as failed to determine that branch of the objectants’ cross motion which was to compel production of a handwriting exemplar of the testator must be dismissed, as it remains pending and undecided.

A Kings County Probate Attorney said, the appeal by the objectant BJ from so much of the order as, in effect, directed a separate proceeding to aid in the disposition of that branch of her cross motion which was to permit her to exercise her alleged right of election (see EPTL 5-1.1-A [c] [4]; SCPA 1421) must be dismissed. That portion of the order is not appealable as of right because it does not decide that branch of the cross motion and does not affect a substantial right (see CPLR 5701 [a] [2] [v]), and leave to appeal has not been granted. Any party aggrieved by a decree entered in the relevant proceeding may take an appeal therefrom.