Probate & Estate Litigation

Published on: November 21, 2015

Defendant Files Objections to Probate Accounting

by Stephen Bilkis

The decedent died in May 2004, leaving a will which was admitted to probate. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of the children. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to petitioner in July 2004.

The Petitioner originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, he filed a First Interim Account of the Estate of the decedent. This document covers the period from May 2004 to January 2008, the same period covered by the First and Final Accounting. The Interim Account was verified by Petitioner in February 2009, nearly one year after the First and Final Account.

The brother filed objections to the accounting. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent made a loan to the brother. In addition, the parties acknowledged that petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

Published on: November 19, 2015

Plaintiff Appeals Decision Denying Request for Constructive Trust

by Stephen Bilkis

In this action for a declaratory judgment, plaintiffs appeal from a judgment where, following a trial on stipulated facts, the court dismissed the complaint. Plaintiffs are the only children of the husband and wife, both now deceased. The wife died first and the husband thereafter. Defendant is the second wife and the other defendant is the executor of the last will and testament of said husband.

Upon the death of the husband, plaintiffs commenced the within action seeking a declaration of their rights with respect to the husband’s estate. The complaint consisted of four causes of action, as follows: (1) To impress a constructive trust upon certain real property located at 141 Forest Green, Staten Island; (2) To void the right of election filed by defendant second wife under section 5-1.1 of the Estates, Powers and Trusts Law as surviving widow of the husband; (3) To impress a constructive trust upon the proceeds of a pension plan of the deceased husband had with the City of New York, which were paid to Anne as designated beneficiary at the husband’s death.; (4) To impress a constructive trust upon funds which prior to the death of the first wife had been in savings and/or checking accounts in the joint or individual names of the husband and wife, and upon other personal property which had been in the joint and/or individual names of the husband and wife prior to the wife’s death, which the husband thereafter transferred to himself and the second wife as joint tenants.

On October 17, 1967 the husband and wife had executed a joint will which provides, in pertinent part, as follows: We, in consideration of the agreement of each of us to dispose of our property as hereinafter set forth, do hereby make, publish and declare this to be our joint Last Will and Testament. First: We give to the survivor of us all our property, both real and personal. Second: After the death of the survivor of either of us, all our property, both real and personal, we give devise and bequeath unto our children (plaintiffs herein). The wife died on September 27, 1971 and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County. At the time of her death, the husband and wife owned as tenants by the entirety, two parcels of real estate, one at 3722 Clarendon Road and the other at Avenue D, in Kings County, and had a bank account in their joint names in a Brooklyn bank.

Published on: November 18, 2015

Court Listens to Hold Over Landlord Tenant Proceeding

by Stephen Bilkis

This is a holdover Landlord-Tenant summary proceeding. The tenant has moved to dismiss the petition pursuant to RPAPL 721 and 741 asserting that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

This case was originally returnable on September 13, 2012. Attorneys for both sides appeared. Tenant’s attorney asked that the case be dismissed and, upon the Court’s reluctance to do so without a record, requested a motion schedule. The Court set the schedule to require that the motion be filed by September 20 with answering papers due September 23 and set October 4 as a control date. Despite this schedule, tenant made no request for any extension of time and made no motion until filing papers on September 28.

The issue in this case is whether petitioner’s motion to dismiss the holdover Landlord-Tenant petition pursuant to RPAPL 721 and 741 on the ground that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

Published on: November 16, 2015

Widow Refuses to Submit Will to Probate

by Stephen Bilkis

In a probate proceeding, the decedent’s widow, appeals from stated portions of a decree of the Surrogate’s Court, Kings County, dated February 13, 1991, which, inter alia, upon refusing to admit a will to probate, impressed a constructive trust upon the entire estate for the benefit of the beneficiaries named in the will, and directed disposition of the decedent’s estate.

The decedent and his wife, the appellant, executed mutual wills that were mirror images of each other. The couple was childless and wanted their assets to be shared equally by their respective relatives. Accordingly, simultaneous with the execution of the wills, they executed a written contract which prohibited either party from revoking or changing the wills in any way, without the written consent of the other, and they further provided that any attempt to do so would be ineffective as against the claims of the legatees of the mirror wills. The wife survived the decedent, whose will is the subject matter of this appeal. His will provide a portion of his estate would be placed in trust with the income therefrom to the appellant for life, and the remainder to their relatives, who were enumerated in the will. The decedent bequeathed the rest of his estate to the appellant outright.

After the decedent’s death, the appellant wife, alleging that she could not find the decedent’s will, applied for and obtained letters of administration. As the sole distributee, she received the entire net estate. The petitioner (hereinafter the proponent), a co-executor and co-trustee under the will, commenced the instant proceeding against her to revoke the letters of administration that were issued to her, and to admit to probate a conformed copy of the decedent’s will or, alternatively, for specific performance of the aforementioned agreement.

Published on: November 5, 2015

Petitioner Files Action Regarding Will Construction

by Stephen Bilkis

A probate proceeding in which HW, a/k/a JW, petitioned pursuant to SCPA 1421, inter alia, to determine the validity and effect of an election pursuant to EPTL 5-1.1-A asserted by her against the estate of the decedent IB, the co-executors of the decedent’s estate, JB and HB, appeal, as limited by their brief, from (1) so much of an order of the Surrogate’s Court, Kings County dated July 3, 2008, as granted the petitioner’s motion for summary judgment on the petition and directed dismissal of their counterclaims, without prejudice, and (2) so much of a decree of the same court dated August 5, 2008, as, upon the order, in effect, is in favor of the petitioner and against them granting the petition, declaring that the election was valid, and dismissing their counterclaims, without prejudice, and the petitioner cross-appeals from (1) so much of the order as, upon directing the dismissal of the counterclaims asserted by JB and HB, did so without prejudice, and (2) so much of the decree, as, upon the order, and upon dismissing the counterclaims, did so without prejudice.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree.

In 1982 IB (hereinafter the decedent), an extremely successful businessman who founded the Berk Trade and Business School (hereinafter the School), executed a will. In his will, the decedent named his two sons, JB and HB, as the co-executors of his estate.

Published on: September 20, 2015

Court Review Instrument Compliance with Decedent Law 21

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).

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 9, 2015

Petitioner Brings Case to Determine the Validity of an Election Asserted Against the Estate

by Stephen Bilkis

In a probate proceeding in which HW, a/k/a JW, petitioned pursuant to SCPA 1421, inter alia, to determine the validity and effect of an election pursuant to EPTL 5-1.1-A asserted by her against the estate of the decedent IB, the co-executors of the decedent’s estate, JB and HB, appeal, as limited by their brief, from (1) so much of an order of the Surrogate’s Court, Kings County dated July 3, 2008, as granted the petitioner’s motion for summary judgment on the petition and directed dismissal of their counterclaims, without prejudice, and (2) so much of a decree of the same court dated August 5, 2008, as, upon the order, in effect, is in favor of the petitioner and against them granting the petition, declaring that the election was valid, and dismissing their counterclaims, without prejudice, and the petitioner cross-appeals from (1) so much of the order as, upon directing the dismissal of the counterclaims asserted by JB and HB, did so without prejudice, and (2) so much of the decree, as, upon the order, and upon dismissing the counterclaims, did so without prejudice.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree.

In 1982 IB (hereinafter the decedent), an extremely successful businessman who founded the Berk Trade and Business School (hereinafter the School), executed a will. In his will, the decedent named his two sons, JB and HB, as the co-executors of his estate.

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: 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 6, 2015

Court Discusses Restrictive Covenants

by Stephen Bilkis

This action is brought to restrain the violation or the threatened violation by the defendant of a certain restrictive covenant claimed by plaintiffs to affect the lots or parcels of land within an area located in the Borough of Brooklyn now or heretofore known as ‘XYZ Property’. The area in question is bounded on the west by Q Avenue, on the north by AD Road, on the east by RGR Avenue and on the south by FNR Street.

In the year 1893, Mr. JJ died testate seized of said real property. His will was duly admitted to probate by the Surrogate. By said will the testator’s real property was devised to his children and his executors were given a power of sale.

On or about April 28, 1899 said executors caused to be filed in the office of the Clerk of the County of Kings a map entitled ‘Map of Property Belonging to the Estate of Mr. JJ.’ By said map, the land within the area was subdivided into building lots. All of the lots within the tract, except those fronting on Q Avenue, were conveyed by deeds containing a restrictive covenant in form as follows: