Articles Posted in Westchester County

A New York Probate Lawyer said from the records, these are two cases involving estate litigation. In the the first probate proceeding, a construction has been requested. The will directs that the residuary estate be given to the testator’s wife, and in the event of a common disaster, to the testator’s daughter. The wife’s death occurred prior to the testator’s but the will contains no provision to cover this contingency. The disposition of the estate is further complicated by the following paragraph of the will: ‘FIFTH: I have not mentioned my son in this Will because he is completely paralyzed and is unable to take care of himself, and after the death of myself and my wife, my daughter has promised to take care of my son, and I know she will keep her promise.’

A New York Estate Lawyer said that the court ruled that, ‘The first rule of testamentary construction, of course, is that a will be interpreted to reflect the actual intention of the testator and the second that this intention be ascertained from a reading of the document as a whole. If a ‘general scheme’ be found, it is the duty of the courts to carry out the testator’s purpose, notwithstanding that ‘general rules of interpretation’ might point to a different result.’

In the Matter of D’Allesandro, the will similarly did not provide for the contingency that ensued. The court stated: ‘There are many instances in which a testamentary disposition, made in a contingency which is provided for but did not occur, is held to apply by necessary implication to a contingency which did occur although not provided for in the will.’

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A New York Probate Lawyer said that according to sources, this will contest action, involving the construction of a latent ambiguity in a will clause, foregrounds the difficulty of determining close cases in the absence of a clearly enunciated burden of proof. An earlier decision denied summary judgment on an objection in this estate accounting challenging “the Executor’s claim that a rare book collection worth more than $5 million at the time of decedent’s death was included in the specific bequest of tangibles,” finding a latent ambiguity requiring consideration of extrinsic evidence and directing a hearing on the issue. Familiarity with the facts set forth in that opinion is assumed, but a few need be repeated in order to place the resulting hearing, and testimony adduced there, in context.

The decedent, died leaving an estate of approximately $17 million. His two-page will, admitted to probate on September 5, 2007, named his wife as his executor. In Article SECOND, it made a specific bequest of tangibles to his wife, and in Article THIRD, it bequeathed the residuary, two-thirds to his wife and one-third to his son. In her capacity as executor, the wife signed and filed an estate tax return that specifically designated a “rare book collection” valued at $5.2 million, which she has deemed included in the specific bequest to her. Whether the Collection was or was not included in the specific bequest is the issue raised by the son, as objectant to the wife’s intermediate accounting.

A New York Estate Lawyer said that witnesses testified at the hearing. The Decedent was a passionate collector of pre–1800 materials relating to festivals, or “fêtes,” and had been engaged in assembling the Collection for many years, beginning before his marriage. The Collection consisted of books; prints, manuscripts, pamphlets, scrolls and broadsides. Most of the Collection was maintained in decedent’s apartment, the books in a glass-fronted bookcase prominently featured in the living room, with other items in storage boxes specially constructed to avoid damage from light and dust. Some twenty-one larger items were kept in a safe deposit box at a nearby bank. The wife, a collector in her own right, assisted him in assembling the Collection, and whenever pieces from the Collection were lent to museums, their provenance was described as that of “Mr. and Mrs.”

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New York Probate Lawyers 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.

A Kings Probate lawyer said that 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, who suffers from chronic physical disabilities, including malfunctioning kidneys, for which he is receiving dialysis treatment. On July 14, 2006, following the death of the decedent, who had been serving as co-trustee with petitioner, successor letters of trusteeship were issued by this court to Bonnie Linzer, who is petitioner’s daughter as well as a remainderman of the trust.

A New York Estate Lawyer said that 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 the daughter, who are remaindermen of the trust as well as the co-trustees, are thus unable to act in respect to these decisions.

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A Probate Lawyer said that, this is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (229 App. Div. 809, 242 N. Y. S. 621), entered May 22, 1930, modifying and affirming as modified a decree of the Kings County Surrogate’s Court admitting to probate the last will and testament of Catherine C. Devine, deceased, so as to provide that costs of the trial be awarded to the contestant, who was named as executor in two other wills, under the provisions of section 278 of the Surrogate’s Court Act.

A Westchester County Probate Lawyer said that, in another case a proceeding was brought to probate and construe will. The fourteenth article of the will gave the residue of the estate of the testatrix to named executrix for any and all charities that she in her uncontrolled discretion might deem it best and fitting. In preceding articles of the will the testatrix made specific bequests to persons and organizations for various religious and charitable purposes. In the fifteenth article she stated that she made no provision in the will for any relative ‘for reasons best known to myself.’ The executrix died on February 26, 1961, and the testatrix died on October 26, 1962.

Suffolk County Probate Lawyers said the Surrogate’s Court, Kings County, construed the fourteenth article and held that will clearly disclosed that sole intention of testatrix was to devote her entire estate to charitable and religious purposes, and that fact that named executrix predeceased testatrix did not affect validity of gifts for benefit of ultimate charitable beneficiaries, and that the discretion reposed in the named executrix was not such an essential part of the testamentary plan that her death would thwart intended charitable purposes of testatrix, and that residuary estate should be equally distributed among beneficiaries designated in other articles of the will.

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A Probate Lawyer said that, the executors seek a determination as to the validity and effect of the notice of election served and filed by the surviving spouse to take against testator’s will. The will, dated August 1, 1960, was admitted to probate on January 24, 1961. By paragraph ‘THIRD’, testator bequeathed 35% of his estate to his wife with the direction that she ‘devote and contribute one-third’ thereof to certain charities. The will contains no other provision for testator’s wife. The remainder of the estate is to be divided among named legatees in specified percentages.

There were no children born of testator’s marriage, thus the intestate share of the surviving spouse is 50% of the net estate. The bequest provided for the surviving spouse under testator’s will does not meet the minimum requirements of the statutes (Decedent Estate Law, §§ 83, 18). The statutory provisions in favor of a surviving spouse are remedial and are to be liberally construed.

A New York Estate Lawyer said that, in another probate proceeding, co-executor and legatee under the will of the decedent, appeals from so much of an order of the Surrogate’s Court, Kings County, entered January 24, 1964, as granted $1,012.50 to lawyer for counsel fees, said amount to be a lien upon appellant’s share of the decedent’s estate.

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A New York Probate Laywer decedent Mrs. AH died in 1940. Her will admitted to probate, after minor pre-residuary dispositions, created a trust for the income benefit of her daughter M with remainder to M’s children. The trust was funded in 1946 and administered by co-trustees M, the income beneficiary and Mr. R. Mr. R died in 1959. From 1959 to June 1, 1977, the date of her death, the trust was administered by M, the income beneficiary, as sole trustee.

At her death in 1977, the remaindermen of the trust were M’s seven children, one of whom was P. M’s executor has now accounted as a fiduciary of the deceased trustee.

The account reveals that on October 9, 1963, M, as sole trustee, made a loan from the trust to P in the sum of $64,000. P executed a demand promissory note to the trust. As security, P executed an assignment of all his right, title and interest in his remainder interest, then (as now) a one-seventh share of the principal. P made interest payments on the loan from 1963 to 1968. No part of the principal of the loan has been repaid.

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A Probate Lawyer said the decedent Mrs. AH died in 1940. Her will admitted to probate, after minor pre-residuary dispositions, created a trust for the income benefit of her daughter M with remainder to M’s children. The trust was funded in 1946 and administered by co-trustees M, the income beneficiary and Mr. R. Mr. R died in 1959. From 1959 to June 1, 1977, the date of her death, the trust was administered by M, the income beneficiary, as sole trustee.

At her death in 1977, the remaindermen of the trust were M’s seven children, one of whom was P. M’s executor has now accounted as a fiduciary of the deceased trustee.

The account reveals that on October 9, 1963, M, as sole trustee, made a loan from the trust to P in the sum of $64,000. P executed a demand promissory note to the trust. As security, P executed an assignment of all his right, title and interest in his remainder interest, then (as now) a one-seventh share of the principal. P made interest payments on the loan from 1963 to 1968. No part of the principal of the loan has been repaid.

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Probate Lawyers said 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.

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.

New York Estate Lawyers said 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.

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New York Probate Lawyers said in this contested accounting proceeding several applications seeking pre-trial relief have been submitted. Specifically said applications are as follows:

A. Application by objectants, by orders to show cause, inter alia, to amend objections and to join additional parties; and B. Application to cancel notices of pendency pursuant to Article 65 of the CPLR.

Decedent died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters testamentary issued thereunder to decedent’s spouse, the nominated executrix. Decedent’s will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a “trust fund” until they each attained the age of 23 years. Decedent’s daughters attained the age of 23 years in 1959 and 1961, respectively.