Estate Administration

Published on: September 19, 2015

Catholic Church Brings Suit to Clarify Will Terms

by Stephen Bilkis

In this miscellaneous proceeding, the petitioner, Catholic Child Care Society of the Diocese of Brooklyn (hereinafter Catholic Child Care Society) seeks to modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of a testamentary trust (hereinafter Dowdall Testamentary Trust) established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL 8-1.1.

The decedent E.M. Dowdall died on April 13, 1968. Her will was admitted to probate in this court on January 16, 1969. Article Fourth of the will sets forth various charitable beneficiaries which include 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 organizations receives a specific bequest of $5,000.

Article Fifth of the will for which relief under EPTL 8-1.1 is sought bequeaths the entire residuary estate to a trust for the benefit of Catholic Child Care Society. Article Fifth further provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The Dowdall Testamentary Trust has a remaining principal of approximately $90,000.

Published on: September 1, 2015

Court Looks at Will Construction

by Stephen Bilkis

The two subscribing witnesses testified to the due execution of decedent’s holographic will and to her testamentary capacity at the time of the execution; that the last page of the instrument, the only one they saw, bore no additional writings below their signatures.

The changes in the street numbers of the addresses of the legatees under items 13 and 14 are immaterial, as well as the interlineation of the amount of the legacy of item 13, as the amount thereof was increased by figures immediately above it and that in turn was interlined and the original amount reinstated with the initials of the decedent above it; the amount of item 16 was interlined, and a lesser sum substituted therefor immediately above it, which in turn was likewise interlined and the original amount restored. Equally immaterial is the phrase in item 15 which reads in payment of money ($500) she gave my sister Mae and for which I thank her. Those interlineations and additions being fair upon their face and unexplained by any evidence to the contrary must be presumed to have been made before the execution of the will. Crossman v. Crossman, 95 N.Y. 145, 153.

The Court finds that the following legacies were originally written in the following sums: item 6–$1,000; item 17–$100; item 18–$100; item 19-$50; and item 20-$200, which sums were interlined and other sums substituted in their places; the interlineations were made either in pencil or ink and the substituted sums in ink, which ink interlineations and substitutions are in different color ink than the original legacies, wherefore it is found that such interlineations and substitutions of different sums were made subsequent to the execution of the will. Matter of Ross’ Will, 177 App.Div. 719, 164 N.Y.S. 884.

Published on: August 31, 2015

Court Discusses Outcome of Contested Probate Proceeding

by Stephen Bilkis

In a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated April 11, 1986, as, upon a ruling made after close of all the evidence at a jury trial dismissing all her objections as a matter of law, dismissed her third objection alleging that the will was procured by the undue influence of the petitioner, admitted the will to probate and awarded letters testamentary to the petitioner.

The testimony at the trial established that the decedent MB had executed a will in 1977 which would have distributed her estate equally to her two sisters, who were then living, and the proponent of the will in question, PH, the surviving son of a third sister. In the event either of MB’s two sisters predeceased her, their shares would go to the objectant, LM, the daughter of one of those sisters. In December 1977MB fractured a hip bone and PH came to her aid and assisted her in getting to the hospital. A few days after MB’s accident, PH ended his employment as a tenured college professor and devoted his energies to assisting his aunt in her affairs, primarily acting as her financial advisor.

Specifically, MB executed a power of attorney in favor of PH; MB’s securities were removed from her safe deposit box by PH and he transferred them to a box in his name; MB’s bank accounts were transferred by PH into an account in the joint names of MB and PH, and PH signed MB’s name on the account application at her request; PH arranged for the dividend checks from MB’s securities to be deposited directly into another joint account which was opened in a similar fashion; and the bank statements from the joint accounts were sent to PH’s home although the proxy materials were sent to MB. In addition, PH assisted MB in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.

Published on: August 29, 2015

Petitioner Raises the Issue of Domicile in Probate Case

by Stephen Bilkis

The decedent ALF, died on the 9th day of January, 1961, while a patient at the Wolcott Clinic, Wolcott, New York.

On the 21st day of February, 1961, EGF, 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.

Thereafter and on the 11th day of July, 1961, the respondent, EKM, 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 ALF at the time of her death and requesting a Hearing by the Court to determine the question above stated. A Hearing was held on the 17th day of July, 1961, and both the proponent therein represented by JCS, Attorney, Wolcott, New York, and the respondent therein represented by RFZ, Attorney, Sodus, New York, produced witnesses and gave testimony to this Court relative to the above issue.

Published on: August 28, 2015

Court Rules on Issues Regarding Trust Beneficiary

by Stephen Bilkis

Before the court is the motion of PLK, the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of WM. Movant seeks summary judgment pursuant to CPLR 3213 granting his petition for appointment as successor co-trustee pursuant to SCPA 1502. In the alternative, movant asks the court to issue an order pursuant to CPLR 3126 striking the objections to his appointment which were filed by SM, a trust beneficiary, for her failure to provide discovery.

WM died on February 14, 2008, survived by his wife, SM (hereinafter, the objectant), his son, MM, and his daughter, LM. Decedent left a will dated October 27, 2004, as amended by codicil dated October 12, 2006. The will and codicil were admitted to probate by this court on April 4, 2008. In Paragraph Second of the will, decedent established a credit shelter trust for the benefit of the objectant. In Paragraph Third of the will, decedent established a generation-skipping trust for the benefit of the objectant. In Paragraph Sixth of the will, decedent created a residuary trust for the benefit of the objectant. In connection with each of the three trusts, letters of trusteeship were issued by this court on April 4, 2008, to the three nominated trustees, namely, MCA, CAL, and the objectant.

MCA submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, SL, executed a renunciation on February 11, 2010. On May 13, 2010, MCA filed a petition with this court for permission to resign and for the appointment of PLK (hereinafter, movant), the next successor trustee nominated by the decedent in his will.

Published on: August 1, 2015

Court Discusses Power of Attorney Document

by Stephen Bilkis

The issue on this appeal is (1) whether a power of attorney which conferred limited realty management powers upon JSF was one relating to an interest in a decedent’s estate and was therefore ineffective under EPTL 13-2.3 for failure to record it in the Surrogate’s Court, and (2) whether plaintiff LC Corporation, a corporation dissolved by proclamation of the Secretary of State for nonpayment of franchise taxes in 1978, had capacity to bring this action to enforce obligations arising out of prohibited new business conducted five years after dissolution. We conclude that the power of attorney was not ineffective for failure to record in the Surrogate’s Court, and that the plaintiff lacked the capacity to institute this action.

In this foreclosure action, instituted in September 1983 by service by publication upon the named defendants MM (deceased) and GG, the appellant JSF sought to vacate a default judgment of foreclosure and sale dated February 24, 1984, and an order of possession dated September 18, 1984, and to dismiss the action. His motion was denied without reaching the merits upon the ground that he lacked standing as a tenant to challenge the foreclosure. Further, a power of attorney, authorizing him to act in a limited capacity for a foreign citizen who alleged ownership of the subject premises through intestate succession, was declared void for failure to record it in the Surrogate’s Court.

Appellant JSF was a long-time friend of the deceased defendant MM, and has resided at 1110 Lincoln Place in Brooklyn, the subject premises, since 1978. He is the attorney in fact for FA, a citizen and resident of Haiti, who asserts an ownership interest in the subject premises by operation of law through intestate succession.

Published on: July 21, 2015

Court Listens to Hearing For Bank to Recover Monies Via Default Judgment

by Stephen Bilkis

In this action by plaintiff JP Bank, to recover monies based upon the default of defendants S.I. Wood Furniture Corp. (Wood), Ikram Said, and Amal Said, a/k/a Amal E. Said, defendants, under a commercial line of credit and a concurrently executed personal guaranty, JP Bank moves, pursuant to CPLR 3212, for summary judgment in its favor as against defendants in the amount of $249,770, with accrued interest in the sum of $5,049.94, interest on $249,770 at its prime rate plus .50%, plus late fees in the sum of $1,935.25, and reasonable attorneys’ fees and expenses.

By a Business Credit Application dated October 17, 2005, Wood applied to JP Bank for a Business Revolving Credit Line in the sum of $250,000. The Business Credit Application set forth the business information of Wood and the personal financial information of Ikram and Amal, as Wood’s president and vice-president, respectively.

A New York Estate Lawyer said that under the section, entitled Authorizing Resolution, Ikram, as the president of Wood, stated that at a corporate meeting. it was resolved that Wood could complete the Business Credit Application and that Wood would then “be obliged to fulfill all of the terms and conditions of the respective note and Credit Account Agreement which it shall thereafter receive. This section of the Business Credit Application was executed by both Ikram and Amal on October 17, 2005.

Published on: July 19, 2015

This Case Involves the Enforcement of a Sister State Divorce Judgement

by Stephen Bilkis

This case involves the enforcement of a sister-state divorce judgment, with respect to arrears in alimony and support payments, pursuant to the Uniform Enforcement of Foreign Judgments Act (article 54 of the CPLR).

In January 1973, the plaintiff-wife commenced an action for divorce in the Superior Court of the State of Connecticut where she was then living and has continued to reside with her two minor children. While the action was pending, the parties executed a separation agreement on April 16, 1973. The agreement provided, Inter alia, for semimonthly payments to the plaintiff for alimony and child support. Thereafter on August 16, 1973, the plaintiff was granted a judgment of absolute divorce by the Connecticut court, specifically incorporating the terms of the separation agreement, the agreement surviving and not merging into the decree.

From the papers it appears that the defendant resided in Manhattan when the separation agreement was executed, and in Brooklyn when the divorce judgment was granted. There is no question of the defendant appearing in and being represented by counsel in the divorce action. Defendant currently lives in Brooklyn and is a practicing veterinarian. Plaintiff alleges that she is a housewife with part-time employment as a teacher in Stamford, Connecticut where her gross annual pay is $3,000.

Published on: July 18, 2015

Court Hears Motion by Executrix Requesting Surrogate to Fix Estate Tax

by Stephen Bilkis

This is a motion by the executrix requesting the Surrogate to fix the New York estate tax (Tax Law § 249–w).

The papers allege that the executrix made a motion to fix the tax returnable on March 16, 1972. Although the State Tax Commission (Commission) was duly served, no order fixing the tax has, 2 years and 9 months later, been submitted to the Surrogate. The executrix requests the Surrogate to act in his judicial, rather than administrative capacity, and to fix the tax (Tax Law § 249–w).

The Commission has appeared but has made no response, formal or informal, to the relief requested by the taxpayer. For the nature of the Commission’s objections, the Court must rely on the information imparted to it by the moving papers. It is there stated that the taxpayer was informed by the Commission that its decision in this and other cases is awaiting determination of pending appeals on related issues.

Published on: July 17, 2015

Courts Discuss Notice of Pendency

by Stephen Bilkis

Upon the foregoing papers, nonparty Geneva Alston, Administrator of the Estate of Mattie Dickens, moves by way of order to show cause for an order 1) cancelling the notice of pendency filed against the subject property on May 19, 2008 by plaintiff Citimortgage, Inc, successor in interest by merger to ABN AMRO Mortgage Group, Inc. and 2) permanently barring as a lien and discharging of record a certain mortgage on the property dated August 22, 2007 given to plaintiff’s predecessor-in-interest by defendant TM, notwithstanding a recorded satisfaction of same dated December 4, 2007.

The owner of the subject property located at 748 Decatur Street in Brooklyn, having taken sole title as tenant by the entirety following the death of her husband, Pearlie Dickens. On February 9, 2006, Mattie Dickens died. The following day, TM executed a deed whereby she purportedly conveyed, as the executor of the Estate of Mattie Dickens, title to the property to herself as grantee. On July 10, 2006, TM executed a mortgage on the property in favor of Fremont Investment & Loan (Fremont) to secure a loan in the amount of $250,000.00. On August 22, 2007, TM executed a mortgage on the property in favor of plaintiff’s predecessor, ABN AMRO Mortgage Group, Inc. to secure a loan in the amount of $340,000.00. According to the settlement statement for the August 22, 2007 mortgage transaction, proceeds totaling $251,237.66 were used to pay off the prior Fremont mortgage. On September 6, 2007, Mortgage Electronic Registration Systems, as nominee for Fremont, issued a satisfaction of the prior $250,000.00 mortgage. The satisfaction of the Fremont mortgage was recorded on September 17, 2007.

On December 4, 2007, plaintiff issued a satisfaction of its $340,000.00 mortgage, apparently in error. The satisfaction of plaintiff’s mortgage was recorded on December 11, 2007. On May 19, 2008, plaintiff filed a notice of pendency on the subject property and commenced the instant action pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL) to vacate the December 4, 2007 satisfaction of mortgage and to restore its mortgage lien to its priority position nunc pro tunc.