Queens

Published on: January 4, 2016

Court Decides Issue Regarding an Appeal Technicality

by Stephen Bilkis

This is an appeal from Supreme Court, general term, second department. Proceedings for the probate of the will of the deceased. The will was propounded by testator’s widow, and contested by respondents and others, children of testator. From a decree of the supreme court, general term, (15 N. Y. Supp. 601,) reversing a decree of the surrogate’s court, Kings County, (10 N. Y. Supp. 744,) refusing probate and directing issues for a jury, contestants appeal. Appeal dismissed.

The general term, on appeal from the decree of the surrogate, which admitted to probate the will of 1881, and the codicil thereto, and denied probate to the will of 1887, on the ground that it was obtained by fraud and undue influence, reversed the decree ‘on questions of fact,’ and directed issues to be framed and sent to a jury for trial.

The appeal to this court is taken on the ground that the general term had no power to review the facts, for the reason that the notice of appeal to the general term did not specify that the appeal was taken on the facts, but was, in general terms only, ‘from the decree and each and every part thereof.’ It is insisted that upon such a notice only questions of law presented by exceptions were brought before the general term, and that it could not reverse on the facts upon a consideration of the weight or preponderance of evidence, or because, in its judgment, the facts should be re-examined by a jury. The appellants rely in support of this contention upon section 2576 of the Code of Civil Procedure. That section, which is found in the article relating to appeals from orders or decrees of surrogates, is as follows: ‘The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case to be made and settled by the surrogate, as prescribed by law for the making and setting of a case upon an appeal in an action.’ The claim is that, if the appellants desire a review upon the facts in the Supreme Court, they must so specify in their notice of appeal. Section 2576 does not require that such specification should be made, nor is it elsewhere prescribed, but this, as is claimed, is an implication from the language of the section. We are not satisfied that this contention is well founded. Section 2574, which prescribes how an appeal may be taken, declares that it must be by written notice, to be served, ‘referring to the decree or order appealed from, and stating that the appellant appeals from the same or from some specified part thereof.’ It is not required that the grounds of the appeal shall be stated in the notice. If, under section 2576, it is necessary to specify that the appeal is upon the facts, in order to give jurisdiction to the appellate court to review them, it would seem equally necessary that, if the appeal was upon the law, it should be so specified, in order to enable the court to review the exceptions. We think section 2576 was intended to declare affirmatively the power of the general term to review both the facts and the law on appeals from surrogate’s decrees, and was not intended to regulate the practice in bringing appeals, except to require that, when the appeal is from a decree rendered upon a trial of an issue of fact, a case must be made and settled, as on an appeal in an action. That was done in this case. The question of undue influence in procuring the will of 1887 was the issue litigated, and upon which the determination of the surrogate proceeded, and a large volume of testimony was presented to the general term, and that court, on reviewing the facts, reversed the decree, and ordered issues. The notice of appeal informed the respondents that the entire decree was challenged, and the case prepared exhibited both the questions of fact and law involved. The rule that in an action tried by a jury a motion for a new trial is necessary to enable the general term to review the facts is based upon reasons wholly inapplicable to the case of a trial before a surrogate.

Published on: November 3, 2015

Court Decides if Heir Left Out of Will was Intentional

by Stephen Bilkis

In this probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute (EPTL 5-3.2) determined. In a prior decision (Dec. No. 80, Feb. 7, 2008), the court ruled that any question regarding a party’s status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings. Rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the movant’s allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

The decedent died on January 13, 2007, survived by eleven children; three from a first marriage, four from a second marriage and four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executrix, who inherits the entire estate valued at several million dollars.

EPTL 5-3.2 creates a rule of presumed intent for a testator who may have inadvertently omitted a child born after he executed his will. If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovoked for by some settlement, the after-born shares in the gift to existing children. Case law has granted non-marital after-born children the same rights as marital after-born children if they can establish their inheritance rights under EPTL 4-1.2. Since the Wilkins case was decided, the after-born statute has been amended to address the rights of after-born non-marital children (L. 2007 ch. 423, eff. Aug 1, 2007). The amendment provides: “For purposes of this section, a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter.”

Published on: October 9, 2015

Petitioner Seeks Final Judicial Settlement of Accounts

by Stephen Bilkis

The petitioner seeks a final judicial settlement of its accounts as Executor under the last Will and Testament of the deceased. As a part of the judicial settlement, petitioner requests this Surrogate’s Court to direct by appropriate order that future payments of support to decedent’s surviving first wife be made an obligation of the Trustee of decedent’s residuary estate and payable from the income and, if necessary, the principal of that residuary trust.

It appears without dispute that by an agreement dated October 10, 1952, decedent assumed an obligation to pay the sum of $300 a month to his first wife, for her support. It was provided that such monthly payments were to continue for the lifetime of the first wife. The Executor properly concluded that the obligation for payment survived the decedent and was binding upon the estate. The agreement is valid and enforceable. The accounts of the Executor disclose that the required payments have been considered as periodically accruing debts and have been paid monthly by the Executor throughout the administration of the estate.

The issue in this case is whether the final judicial settlement of the executor’s accounts should be granted.

Published on: October 5, 2015

Court Discusses Contested Probate Proceeding

by Stephen Bilkis

The two cases hereunder is about probate proceedings.

In the first case involves a contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

The Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute.

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 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: 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 12, 2015

Court Listens to Construction Proceeding Regarding Tax Returns

by Stephen Bilkis

The executors have instituted this construction proceeding, prior to the filing of Federal and New York estate tax returns, to determine the effect of a tax exoneration clause, paragraph second and request a reformation or interpretation of paragraph eleventh, which creates a pre 1969 residuary, multiple, split-income, charitable remainder trust so as to qualify it for a charitable deduction under U.S.Code, tit. 26, § 2055 as amended by the Tax Reform Act of 1969 (TRA).

The testator died on September 9, 1973, age 92, leaving a daughter, age 64, as his sole distributee, and a granddaughter and three great-grandsons. His will, executed on December 19, 1967 was admitted to probate and letters testamentary issued to petitioners on October 1, 1973.

Paragraph second of the will provides: I direct that all my funeral, administration expenses, just debts, and all estate and inheritance or succession taxes be paid as soon after my death as may be practicable. After several outright and in trust cash bequests to his daughter, granddaughter, great-grandsons and friends totalling $38,050, testator gave his residuary estate to his trustees in trust.

Published on: July 1, 2015

Court Reverses Order Disqualifying Executrix

by Stephen Bilkis

In a probate proceeding, the petitioner, Mrs. JP, appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated October 16, 2007, as, after a hearing, granted those branches of the motion of the objectant, Mr. EP III, which were to disqualify her from serving as executrix for the estate of a deceased relative and to reinstate letters of administration previously issued to the objectant.

The order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the objectant, Mr. EP III, which was to disqualify the petitioner is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the objectant is denied, and the matter is remitted to the Surrogate’s Court, Kings County, for further proceedings in accordance herewith.

The right of a testator or testatrix to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded, as explained in the case of Matter of Flood ( 236 N.Y. 408, 410, 140 N.E. 936). However, in the case of Matter of Mergenhagen (50 A.D.3d 1486 1488, 856 N.Y.S.2d 389) the Surrogate may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper administration of the estate, and future cooperation is unlikely.

Published on: May 18, 2015

Respondents Seek to Compel Co-Executors to Provide Various Documents

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, respondents M and J move to compel the co-executors of the estate, S, the surviving spouse of decedent, and K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. L and; (3) un-redacted photocopies of notes taken by Mr. L during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.

In opposition to respondents’ motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. L represented both decedent and decedent’s surviving spouse, S, in connection with their estate plan, and had confidential communications with decedent and S, jointly and individually, concerning S’s estate plan and assets, and that the contents of those communications concerning S’s estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties. The executors move for a protective order concerning the alleged privileged redactions.

A New York Estate Lawyer said although respondents further argue that the executors’ response to their discovery demands is untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute. The time limitations of CPLR 3122 do not apply where the material sought is claimed to be privileged or where discovery would be palpably improper. The documents sought in this matter are alleged to be privileged, and thus respondents’ reference to CPLR 3122(a) is misplaced and the executors’ motion for a protective order is timely and proper.