Estate Administration

Published on: June 18, 2016

Court Decides Proceeding for Leave to Compromise for Wrongful Death

by Stephen Bilkis

This case was initiated by JC as administrator of the goods, chattels and credits which were of CP, deceased – for leave to compromise a certain claim for wrongful death and to render and have judicially settled an account of the proceedings as administrator – brought before the Surrogate’s Court of the City of New York, Nassau County.

This is a proceeding for leave to compromise an action for wrongful death and conscious pain and suffering.

On 7 June 2000, the decedent died as a result of injuries he sustained in a construction accident in Bronx, New York. He was survived by his wife and two children all of whom presently reside in Ecuador. On 13 October 2000, the court issued limited letters to petitioner, JC, decedent’s uncle, to commence the instant action.

Published on: June 15, 2016

Court Discusses Powers of a Surrogate

by Stephen Bilkis

This case was brought before the Court of Appeals of New York.

The issue here is the power of the surrogate to require an administrator’s bond in double the value of the personal estate in this state of JDP, who at the time of his death was a resident of New Jersey, as a condition to the grant of ancillary administration.

At the time of JDP’s death, his personal estate consisted of personal effects with a value of about $2,500 in New Jersey, and stocks and securities with a value of about $40,000, deposited with a safe-deposit company in the city of Brooklyn.

Published on: June 14, 2016

Petitioner Brings an Appeal Regarding the Value of the Estate

by Stephen Bilkis

This is an appeal from the Supreme Court, Appellate Division, Second Department brought before the Court of Appeals of New York. First, an application was filed by LK, as executrix of the last will and testament of DFK, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. Thereafter, the Surrogate of Kings County issued an order confirming the report of the appraiser. This was subsequently affirmed in an order by the Appellate Division of the Supreme Court for the Second Department. Consequently, the applicant appealed. The instant Court affirmed.

DFK died in the city of Brooklyn, leaving a last will and testament. On 10 September 1895, the will was admitted to probate. Only LK, the appellant, qualified as executrix thereof. Subsequently, she petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.

The will of the decedent, so far as material to the questions involved in this appeal, provides as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situated, unto my three sisters, MK, AK, and LK.’

Published on: June 12, 2016

Appellant Files Case Review Judicial Settlement of Will

by Stephen Bilkis

This is an appeal brought before the Court of Appeals of New York from a decision rendered by the Supreme Court, Appellate Division, Second Department, in the matter of the judicial settlement of the account of MNH and others, as trustees under HH’s will.

The trustees appealed from an order of the Appellate Division affirming a decree of the Surrogate’s Court settling their account. The instant court modified and affirmed.

The issue here is the validity and effect of certain portions of the will of HH, and the correctness of the directions contained in a decree of the surrogate of Kings county as to the disposition of certain moneys of his estate.

Published on: June 11, 2016

Surrogates Court Called to Establish Lost Will

by Stephen Bilkis

This is a proceeding brought before the Surrogate’s Court, Kings County, to prove the last will and testament of AEF – to establish a lost will pursuant to the provisions of Section 143, Surrogate’s Court Act.

On 11 February 1958, the decedent AEF died.

According to the subscribing witnesses of the will, on 4 February 1958, the decedent duly executed a will in accordance with the provisions of Section 21, Decedent Estate Law, and that, at the time of execution, he was fully competent to execute a will and was under no restraint.

Published on: June 10, 2016

Petitioner Files for Custody of Child

by Stephen Bilkis

This is a proceeding for the custody of minors under Article 6 of the Family Court Act brought before the Family Court of Kings County.

The petitioner is the natural mother of a child born in 1976 in Brooklyn.

The respondent is the child’s paternal grandmother who was appointed in December 1977by the Surrogate of Kings County as guardian of the person for the child.

Published on: June 8, 2016

Court Discusses Will Construction Issue

by Stephen Bilkis

The testatrix died January 10, 1914 leaving a will which was admitted to probate April 15, 1914. By paragraph ‘Fourth’ of her will she left her residuary estate in trust, and in substance provided that income be payable to a grandnephew for life, and upon his death that the trust be distributed to such of his children or their issue in such proportions as he might be will appoint, the power of appointment being limited, however, to his children or their issue who survived him, and in default of any such will or any such appointment, that the trust pass to the children of the grandnephew and the issue of any who had died per stirpes.

By paragraph ‘Fifth’ of the will testatrix provided that in case the grandnephew dies ‘intestate after me without lawful issue him surviving’ the trust shall be distributed to ‘my heirs at law and next of kin’. Such grandnephew died without issue on October 20, 1957, but whether or not he died intestate is questioned. The reason for the question is because he left a will under which he gave his entire estate to his mother and named her executrix. His mother, however, had predeceased him so that his will was wholly ineffective as a dispositive testamentary instrument as well as ineffective to name an executor. The will was, nevertheless, admitted to probate in another county, and letters of administration issued to one of his distributees who has since died.

Since the grandnephew had no children, the limited power of appointment could not have been and was not exercised and for the same reason the gift-over to children and issue of the grandnephew under paragraph ‘Fourth’ in default of appointment could not take effect. The result is that testatrix must be considered intestate as to the disposition of the trust after death of the income beneficiary unless some other provision of the will prevent such intestacy. If intestacy does result distribution must be to decedent’s heirs and next of kin determined as of the date of her death in 1914.

Published on: June 7, 2016

Court Looks at Construction of Charitable Trust

by Stephen Bilkis

This proceeding was originally commenced by the son of Mrs. NED, now deceased, who was testator’s niece and one of his two distributees, for a construction that the charitable trust created under paragraph Tenth of testator’s will is invalid. The special guardian for testator’s half-sister, who was testator’s other distributee, takes a similar position. Both distributees and four other persons were given lifetime specified annual legacies under the will and codicil.

Thereafter the said son, who is a residuary legatee under his mother’s will and one of her coexecutors, in his representative capacity, and his mother’s other coexecutor made themselves parties to this proceeding by adopting, amending and supplementing the original petition. The conservator appointed for testator’s half-sister, by a separate instrument adopted the petition and the amended and supplemental petition herein.

The special guardian urges that a hearing be held to ascertain the facts surrounding the execution of an agreement dated December 12, 1936 by and among his ward, Mrs. NED, the nominated corporate executor, and the Attorney-General of the State of New York. Under said agreement the objections to probate of the testator’s will and codicil, which had been interposed by testator’s half-sister, were withdrawn, conditioned upon the payment of a substantial sum of money to each distributee, in addition to the benefits given to each of them under the will.

Published on: June 6, 2016

Deceased Leaves Majority of Estate to Charity

by Stephen Bilkis

JB died a resident of the City of Poughkeepsie, Dutchess County, New York, on April 5, 1954, leaving a Last Will and Testament (and Codicil) which were thereafter on the 30th day of April, 1954, duly admitted to probate in this Court. At the time of his death testator was survived by his wife Mrs. JB and his brother MR. TB. On October 18, 1965, some 11 1/2 years after probate, a petition was filed by Mrs. JB, the widow, praying for a determination of the validity, construction and effect of said Will, particularly of paragraphs ‘FOURTH’, ‘FIFTH’, and ‘SIXTH’, whereby it is alleged that more than 50% Of decedent’s estate was left to a religious association in violation of Section 17 of the Decedent Estate Law. This section provides as follows:

‘No person having a husband, wife, child, or descendant or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. The validity of a devise or bequest for more than such one-half may be contested only by a surviving husband, wife, child, descendant or parent. When payment of a devise of bequest to such society, association, corporation or purpose is postponed, in computing the one-half part of such society, association, corporation or purpose, no allowance may be made for such postponement for any interest or gains or losses which may accrue after the testator’s death. The value of an annuity or life estate, legal or equitable, shall not be computed upon the actual duration of the life, but shall be computed upon the actuarial value according to the American Experience Table of Mortality at the rate of four per centum per annum. Such value shall be deducted from the fund or property, which is subject to the annuity or life estate, in order to ascertain the value of a future estate or reminder interest passing to such society, association, corporation or purpose.’

The Last Will and Testament of Mr. JB, after making certain specific bequests and naming his wife Mrs. JB (petitioner), his brother Mr. TB and his friend and attorney Mr. DM, as executors, provided as follows:

Published on: May 31, 2016

Court Decides Uncontested Proceeding for Reformation of Will

by Stephen Bilkis

This is an uncontested proceeding for reformation of Article FIFTH of decedent’s last will and testament dated November 21, 1979, as amended by Article II of a codicil thereto dated March 24, 1982 (collectively, the “will”). Decedent died on December 12, 1984. The will was admitted to probate by decree of this court.

Petitioner, the sister of the decedent, is a co-trustee of the trust created under Article FIFTH of the will (the “Trust”) for the benefit of decedent’s son, MR. BB, who suffers from chronic physical disabilities, including malfunctioning kidneys, for which he is receiving dialysis treatment. On July 14, 2006, following the death of MR. JJ, who had been serving as co-trustee with petitioner, successor letters of trusteeship were issued by this court to MRS. LL, who is petitioner’s daughter as well as a remainderman of the trust.

Under Article III of the codicil, a trustee who is also a beneficiary of the trust is prohibited from (1) exercising discretion to pay or not to pay income or principal from the trust; (2) determining whether a beneficiary of the trust is disabled; (3) terminating any trust or life estate thereunder; and (4) exercising discretion to allocate receipts or expenses between principal and income. Petitioner and MS. LL, who are remaindermen of the trust as well as the co-trustees, are thus unable to act in respect to these decisions.