Queens

Published on: March 21, 2015

Defendant Claims That Plaintiff Should Have Applied for Guardian Ad Litem Proceeding

by Stephen Bilkis

Defendant moves, pursuant to subdivision 8 of Rule 107 of the Rules of Civil Practice, to dismiss plaintiff’s complaint on the ground that the cause of action cannot accrue against the infant defendant because of his infancy.

Probate Lawyers said the action is brought by the infant plaintiff against the infant defendant for a separation on the ground of alleged cruel and inhuman treatment. It appears from the papers before the court that both of the parties are under 21 years of age. Before instituting this action, plaintiff applied for and secured the appointment of a guardian ad litem. Thereafter, the summons and complaint were served upon both the infant defendant and his father with whom he resided. Defendant now asserts that plaintiff should have applied for the appointment of a guardian ad litem for the defendant before making service of the summons and complaint herein.

A New York Estate Lawyer said the issue before the court is whether it is the obligation of the plaintiff to apply for and secure the appointment of a guardian ad litem for the defendant prior to the service of process, or whether it is the obligation of the defendant, after having been served with the summons and complaint, to himself apply for such relief.

Published on: March 20, 2015

Trustee Requests Final Accounting of Residuary Trust

by Stephen Bilkis

Probate Lawyers said this is a final accounting by the trustee in respect of the residuary trust which terminated upon the death of testator’s widow and life beneficiary on April 16, 1957. In conjunction therewith the Court is required to construe the will, particularly article ‘Eighth’ subd. ‘(2)’ thereof. The construction involves the applicability of Decedent Estate Law, § 47-a, which reads as follows:

If a person dying after this section takes effect shall devise or bequeath any present or future interest in real or personal property to the ‘issue’ of himself or another, such issue shall, if in equal degree of consanguinity to their common ancestor, take per capita, but if in unequal degree, per stirpes, unless a contrary intent is expressed in the will.

A New York Estate Lawyer said that the testator died on December 10, 1936, leaving a will dated November 14, 1930, and two codicils, all of which were duly admitted to probate in this Court on December 28, 1936. Letters testamentary were issued to the widow and Guaranty Trust Company of New York who were the nominated executors, and letters of trusteeship were issued to the trust company now accounting. Testator was survived by his widow, a stepson, a brother Thomas who has since died, a nephew who is the son of a predeceased brother, and a brother WWG. WWG, who died in 1942, was the primary remainderman in the article of the will to be construed. The latter was survived by an only child now known as MH. She and her first husband were divorced and both subsequently remarried. The husband was given custody of their two daughters who were born in 1940 and 1943 respectively. The construction affects the conflicting interests of their two minor children on the one side and of their mother on the other, as secondary remaindermen. The mother’s interest is said to be subject to the claims of assignees, sub-assignees and judgment creditors.

Published on: March 19, 2015

Court Interprets Will Provisions

by Stephen Bilkis

Probate Lawyers said this is a proceeding to construe Article Sixth of testator’s will which was admitted to probate on March 9, 1961. By said article testator bequeathed his residuary estate in trust, to invest and reinvest ‘and to pay to my beloved wife so much of the income therefrom as she may require for her proper maintenance and support during her lifetime. It is my purpose and intent that my said beloved wife shall at all times have sufficient income paid to her regularly so that she may properly maintain herself in comfort. Testator then directed his trustees to resort to the principal of the trust should the income be less than $6,000 per year or in the event his said wife shall because of her personal health require hospitalization or medical care so that the $6,000 per annum is not sufficient to support her. Said Article Sixth then concludes as follows:

This provision for the benefit of my said wife is made and intended to be in lieu of any statutory or other rights in my estate conferred upon her by the laws of the State of New York. In the event that my said beloved wife shall be dissatisfied with the provision made for her hereunder and seek to contest this will, or refuse to accept the provision made hereunder under her statutory rights, in such event she shall be entitled to her statutory share of my estate and to no more, which statutory share of my estate is to be received by her in lieu of the provision made hereunder.

A New York Estate Lawyer said on May 12, 1966 testator’s wife served a notice upon the executors herein wherein she states among other things that she is dissatisfied with the provisions made for me therein (in Article Sixth) and refuse to accept same, and demand that I be paid in lieu thereof an amount equal to a statutory share, in an amount equal to one-third of the net estate together with such amount and property to which I am entitled under section 200 of the Surrogate’s Court Act.

Published on: March 4, 2015

Court Discusses Order for Temporary Suport

by Stephen Bilkis

Probate Lawyers said the issue before this court appears to be one of first impression. The question presented is does an order of temporary support cease if the matrimonial action abates? Stated slightly differently, may a pendente lite child support order be enforced after the underlying matrimonial action has abated and, if enforceable, who may enforce it?

In this application, a non-party, the non-parent legal guardian of one of the children of the parties, seeks to enforce a temporary order of child support granted to the mother of the child. The temporary child support order was issued as part of a matrimonial action. The mother is now deceased. A factual review of this matter is necessary prior to the court determining the questions presented.

New York Estate Lawyers said in 1987 plaintiff-wife, BF commenced this matrimonial action. By order entered February 6, 1989, defendant-husband, AEF, was ordered to pay plaintiff $200 per week as pendente lite child support for KF (the parties’ only unemancipated child) and $200 per week as pendente lite maintenance. Defendant was at that time a retired employee of the New York City Department of Corrections. In an order, dated November 29, 1989, the court permitted the enforcement of the pendente lite order of child support and maintenance by way of a $400 per week income deduction from defendant’s pension payment. The pension was from the New York City Pension System which was then in pay-out status. Pursuant to the income execution plaintiff started to receive payments from the New York City Pension System equivalent to $400 per week.

Published on: March 2, 2015

Petition Files a Petition to Compel

by Stephen Bilkis

New York Probate Lawyer said that 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.

A New York Estate Lawyer said that 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: February 23, 2015

Court Decides Action for Partition of Real Property

by Stephen Bilkis

Probate Lawyers said that an action for partition of real property, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated December 5, 1983, as, after a nonjury trial, declared that defendant was the owner in fee simple of the subject premises located at 16th Avenue in Brooklyn, New York. Judgment affirmed insofar as appealed from, with costs.

The parties are brother and sister. Upon the death of their father on February 16, 1977, and the admission of his will to probate, plaintiff and defendant and their brother, L, each inherited an undivided one-third interest in three parcels of real property. These consisted of a two-family house on 66th Street in Brooklyn which was plaintiff’s residence; a three-family house on 16th Avenue in Brooklyn where defendant had resided for more than 20 years; and a parcel of land in Shirley, New York.

A New York Estate Lawyer said that the father also left money in bank accounts in trust for defendant and for her son, V, and it appears that there was a falling-out between defendant and her brothers when defendant failed to share that money with them. Nevertheless, plaintiff and defendant continued to have conversations concerning the transfer to each other of their interests in the two Brooklyn properties.

Published on: February 20, 2015

Court Discusses Validity of Will

by Stephen Bilkis

A Probate Lawyer said that according to sources, both cases involved issues as to the estate. In the first case, as an incident to an account by trustees of the trust for the benefit of testator’s daughter, which terminated by her death, a construction is sought of the validity of the attempted exercise of a power of appointment of the corpus of the trust under the will of testator’s other daughter. By article ‘Second’ testator created a trust of his residuary estate, the income of which was to be paid to his wife during her life. Upon the latter’s death one-third of the corpus of such trust was continued for the life of testator’s daughter, with the income payable to her during her life. On her death the principal was payable to her issue per stirpes, and in default of issue, the principal was payable to another daughter. The will further provided that if the other daughter predeceased her sister, the principal of said trust was payable to such person or persons as said other daughter directed or appointed by her will. If not effectively appointed, distribution was to be made to next of kin of the other daughter in proportions provided under the statute of distribution in effect at her death.

A New York Estate Lawyer said the daughter, the secondary life beneficiary died leaving no issue. Another daughter, predeceased her sister leaving a will which was admitted to probate. Under the third article of the will of the other daughter, her appointive power was exercised by creating further trusts for the benefit of her children, the principal payment to each child being deferred until they attained respective ages of 35, 40, 45 and 50 years. The Court holds that the appointment made under the will of the other daughter is invalid as violating the rule against perpetuities, in effect at the time of its exercise . The trust created thereunder suspended unlawfully the trust created under the testator’s will. The principal of the trust must therefore be distributed equally to said children of the said other daughter living at her death as the alternative beneficiaries under the testator’s will.

A Nassau County Probate Lawyer said that on the second case, Proceedings were brought to contest the probate of an alleged will. The Surrogate’s Court, entered a decree granting in part the proponents’ motion for summary judgment which directed specific performance of an agreement of compromise made in open court and denied contestants’ cross motion to dismiss the petition. The Appellate Division reversed on ground that it was an improvident exercise of discretion to direct testatrix’ daughters to specifically perform agreement of compromise allegedly made and recorded in open court, and an appeal was taken. Motion to dismiss the appeal granted upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the constitution.

Published on: February 7, 2015

A Determination is Sought as to the Validity of a Devise of Real Property

by Stephen Bilkis

In this construction proceeding a determination is sought as to the validity and effect of a devise of real property contained in testatrix’ will.

A Probate Lawyer said the testatrix died on May 13, 1932 survived by five daughters, and children of a predeceased daughter. Testatrix’ will dated February 4, 1923 was admitted to probate on July 8, 1932, and under it the daughter was appointed executrix. At present the only unadministered asset of the estate is a specific parcel of real property. By article fourth of the will this realty is devised to testatrix’ five daughters ‘share and share alike, for the term of their natural lives, and upon the deceased of each or any of them her share to revert to the survivor or survivors of them and to no others, until there is a sole surviving daughter in which event the said sole survivor shall take the property in fee simple absolute.’ Article fifth of the will contains a prohibition against sale of the realty unless such sale be made ‘with the unanimous express consent of all’ the living sisters. By article seventh testatrix directs that if any proceeding is commenced by any of the daughters ‘to set aside this Will or to seek any interpretation contrary to my intentions expressed herein, then and in that event, the said daughter shall immediately forfeit all her right, title or interest in any of my property’

A New York Estate Lawyer said that petitioner herein, is the only living daughter, the other devisees of the realty having died in different instances. She now seeks to sell the real property, and in this proceeding requests a determination as to the person or persons entitled to the ownership thereof, and of the effect of article seventh upon the interested parties. Request is also made that letters of administration c.t.a. be issued to petitioner, and that she be granted specific authority by the court to sell the said realty.

Published on: February 5, 2015

Court Decides if Widow Entitled to Maximum Exemption Regarding Estate Tax

by Stephen Bilkis

Probate Laywers said that sources revealed that the decedent died leaving a joint will entered into with his wife. Under the provisions of that will all property of the person first dying is bequeathed to the survivor; upon the death of the survivor ‘all of the property of which he or she shall be possessed, including such property as he or she shall have acquired under the terms of this Last Will and Testament, shall go’ to a daughter with a gift over if said daughter predeceases the survivor. The Tax Commission urges that the widow is not entitled to the maximum exemption because the taxable estate transferred to her is not ‘indefeasibly vested’ within the meaning of section 958(b)(1) of the Tax Law. It argues that the joint will is a contract binding upon the survivor, and that the widow, at most, has the equivalent of a life estate, the remainder of which passes to the daughter upon her death.

Although both parties base their contentions upon the provisions of the joint will, that instrument has not been offered for probate. Ordinarily a will is not presumed valid until probated, as before such approval there is nothing to be construed. However, SCPA 2002 provides that the surrogate’s court of every county having jurisdiction of the estate of a decedent under the provisions of the tax law relating to transfer or estate taxes shall have jurisdiction to hear and determine all questions arising thereunder, including specifically, but without limitation, jurisdiction to fully determine the amount of tax to be imposed. Aside from the ordinary jurisdiction of the surrogate, this is a special grant of power in broad and comprehensive language. There can be no good reason for hampering the power conferred by any construction that would take from the court the authority to decide every question that may arise in the tax proceeding which may be necessary in order to fully discharge the duties imposed by the law. As an incident to determining the estate tax, the court, in this instance, must necessarily interpret the terms of the joint will. Under such circumstances a construction of the will is proper despite the fact that the will has not yet been probated.

A New York Estate Lawyer said that furthermore, SCPA 209(4) provides, in part, that the court has power ‘to determine a decedent’s interest in any property claimed to constitute a part of his gross estate subject to estate tax and to determine the rights of any persons claiming an interest therein as between themselves, And to construe any instruments made by him affecting such property.’ One of the issues raised herein is whether the joint will is a contract binding upon the survivor. Though the contract, if one was created, is tantamount to a testamentary disposition, it need not comply with the statutory requirements for the execution of wills. The court is thus interpreting the validity of the document not as a will but as a contract, which is an instrument within the meaning of SCPA 209(4).

Published on: January 31, 2015

Court Hears Proceeding to Judicially Settle Decdent’s Final Account

by Stephen Bilkis

A Probate Lawyer said that incidental to this proceeding to judicially settle decedent’s final account, covering the period from December 1, 1984 to July 31, 1999, is a plea for construction of paragraphs Fifth and Sixth of his will. National Bank (petitioner), the successor executor and trustee under the will, maintains that construction is necessary before final distribution can be made. Petitioner, the stakeholder of testamentary trusts created under paragraphs Fifth and Sixth, takes no position with respect to the ultimate remaindermen of the trusts.

Mr. FC (hereafter decedent) died testate on January 18, 1944. His last will and testament of February 27, 1942 was admitted to probate by this court on February 10, 1944. Decedent was survived by a daughter, M, and a son, L, his distributees. Decedent’s wife predeceased him in 1942.

After directing the payment of debts and expenses and leaving personal effects, real property and the sum of $1,000 to M, decedent’s will directed that the residue be divided into three equal shares. From these shares, the will established two testamentary trusts: one funded with two thirds of the residuary estate (the article Fifth Trust) and one funded with the remaining one third of the residuary estate (the article Sixth Trust).