Probate & Estate Litigation

Published on: September 20, 2017

Court Decides if a Will Was Properly Executed- In re Levine’s Will, 149 N.Y.S.2d 843 (N.Y. Surr. Ct. 1954)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a will was properly executed. New York estate law requires that in order for a will to be valid, it must meet certain technical requirements related to execution. That is the requirement now, and it was also the requirement decades ago when the will at issue in this 1954 Surrogate’s Court case was executed.

Decedent Estate Law, § 21 provides that in order for a will to be valid, there are 4 requirements related to execution: 1. The will must be signed by the testator at the end. 2. The testator must sign the will in the presence of two attesting witnesses. Otherwise, the testator must acknowledge to the witnesses that he signed the will. 3. At the time that he signed the will or acknowledged that he signed the will, the testator must also declare to the witnesses that the document that he signed was indeed his last will and testament. 4. The two attesting witnesses must also sign the will at the end.

In the case of In re Levine’s Will, the court had to decide if the second requirement was met that the decedent signed her will in the presence of two witnesses, or acknowledged to the witnesses that the signature on the will was indeed hers. One of the witnesses, Glackman, was not present when the decedent, B. Levine, signed her will. Therefore, in order for the execution of the will to be compliant with the statute, the decedent must have acknowledged to Glackman that she did actually sign the will. Levine did not do this.

Published on: September 16, 2017

Petitioner seeks to revoke letters of administration – In the Matter of Construction and Effect of the Revocable Trust Agreement, 20 Misc.3d 383 (N.Y. Surr. Ct., 2008)

by Stephen Bilkis

In this case, the Surrogate’s Court was asked by two of the decedent’s creditors to revoke the estate administrator’s letters of administration because in petitioning the court for letters of administrator, the petitioner mispresented his status as a distributee of the decedent’s estate.

The decedent, J. Young, was a successful songwriter. He died in 1939 intestate. The term “intestate” means that Young died without having executed a valid will. He was survived by his spouse and his father. Under New York’s intestacy laws, they were his only distributees. In May 1939, Young’s wife was appointed administrator of his estate. She died in November 1973, leaving a properly executed will that named co-executors.

In September 2009, the grandnephew of the decedent, N. Young, petitioned the court for letters of administration de bonis non with respect to the decedent’s estate. Pursuant to Surrogate’s Court Procedure Act § 1007 (link to: https://estatelawyer.1800nynylaw.com/surrogates-court-procedure-act-1007-administration-de-bonis-non.html) , letters of administration de bonis non are letters that allow for the administration of assets that remain in an estate in situations where the original executor or previous administrator is unable to do so. The petition filed by the grandnephew, the respondent in this case, was supported by waivers and consents of twenty-one of the distributees identified. A citation was issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

Published on: September 16, 2017

Court Decides if Petitioner Made a Case for Summary Judgment

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the motion of the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of the decedent. Movant seeks summary judgment pursuant to CPLR 3213 granting his petition for appointment as successor co-trustee pursuant to SCPA 1502. In the alternative, movant asks the court to issue an order pursuant to CPLR 3126 striking the objections to his appointment which were filed by a trust beneficiary, for her failure to provide discovery.

The decedent died on February 14, 2008, survived by his wife, hereinafter, “the objectant”, his son, and his daughter. Decedent left a will dated October 27, 2004, as amended by codicil dated October 12, 2006. The will and codicil were admitted to probate by this court on April 4, 2008. In Paragraph Second of the will, decedent established a credit shelter trust for the benefit of the objectant. In Paragraph Third of the will, decedent established a generation-skipping trust for the benefit of the objectant. In Paragraph Sixth of the will, decedent created a residuary trust for the benefit of the objectant. In connection with each of the three trusts, letters of trusteeship were issued by this court on April 4, 2008, to the three nominated trustees and the objectant.

One trustee submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, executed a renunciation on February 11, 2010. On May 13, 2010, the trustee filed a petition with this court for permission to resign and for the appointment of hereinafter, “movant”, the next successor trustee nominated by the decedent in his will.

Published on: September 10, 2017

Court decides if surviving spouse is entitled to elective share – In re Berk, 897 N.Y.S.2d 475, 71 A.D.3d 883 (N.Y. App. Div., 2010)

by Stephen Bilkis

In 1982, the decedent, I. Berk, executed a will naming his sons, J. Berk and H. Berk, as the co-executors of his estate. The will also left his entire estate to his sons and his grandchildren. I. Berk was a successful businessman with substantial assets. Over time I. Berk’s physical and mental health began to deteriorate. Eventually he had to use a wheelchair to get around, suffered memory loss, and was often confused.

In 1997 the petitioner, H. Wang, who was a 40-year-old recent immigrant from China, began to work as the decedent’s live-in caretaker. Eventually, the decedent, became totally dependent on the petitioner, who was constantly with him. Friends of the decedent reported that the petitioner treated the decedent poorly, frequently screaming and shoving him, causing him to become tearful. A friend of the decedent alleged that the decedent told him that he was afraid of the petitioner.

In April 2005 the decedent was diagnosed with dementia by a physician who examined him in connection with a contemplated guardianship proceeding. That physician stated that the decedent was no longer capable of caring for himself or managing his own affairs. Despite this, on June 17, 2005, the petitioner and the decedent got married in the New York City Clerk’s Office. At the time the petitioner was 47 years old and the decedent was 99 years. Neither the petitioner nor the decedent ever told the decedent’s friends, family members, or associates about the wedding. In addition, according to a friend who saw the decedent every day, the decedent and the petitioner never showed affection towards each other and the decedent never wore a wedding band. The decedent’s sons learned of the wedding after the decedent died in 2006, as they were riding in a car to the funeral home with the petitioner. At that time the petitioner told them that she had married the decedent.

Published on: September 3, 2017

Carbon copy of a will submitted for probate – Levinsohn’s Estate, In re, 160 N.Y.S.2d 479 (N.Y. Surr. Ct., 1957)

by Stephen Bilkis

In this case the Surrogate’s Court had to determine whether to probate a carbon copy of a will where the original was purported inadvertently lost or destroyed.

According to the two witnesses, the decedent, L. Levinsohn, executed a will on or about February 27, 1948. They testified that all legal requirements were met. In addition, they testified that at the time Levinsohn executed the will, the decedent was of sound mind and memory and that he was not under duress.

One of the two witnesses was an attorney and was also the person who drafted the will. He testified that immediately after the will was executed, he gave it to the decedent’s son for safekeeping. This witness also testified that he made a carbon copy of the original will which he conformed and kept in his files. The witness submitted the carbon copy for probate.

Published on: September 2, 2017

Court decides whether language in a will is mandatory or precatory – Moore’s Will, In re, 227 N.Y.S.2d 702 (N.Y. Surr. Ct., 1962)

by Stephen Bilkis

In this case the Surrogate’s Court considered whether certain language in a will is a mandatory condition of a beneficiary’s receiving a bequest or is merely precatory language.

In her will, decedent Moore left her residuary estate to a beneficiary who was a resident of Poland. The language of the bequest included that the residuary estate was to be the beneficiary’s “to be hers absolutely and forever.” Additional language stated that the beneficiary, who was a minor at the time of Moore’s death, was to come to New York City to receive the payment. The question for the court was whether the executor was required to make the payment to the beneficiary in New York City, or if the executor could send the payment to the beneficiary in Poland.

The court concluded that the provision stating that the executor is to make the payment in New York City was not a mandatory, but precatory language. Language in a will that surrounds a bequest can be mandatory or precatory. If the language is mandatory, an imperative duty is imposed, meaning that it is a condition of receiving the bequest and the court can enforce the provision. If the language is precatory, then no imperative duty is imposed. Performance is up to the discretion of the beneficiary. In other words, the obligation is moral not legal. The court cannot order the beneficiary to perform as a condition for receiving the bequest. Typically, precatory language includes “wish,” “want,” “recommend,” or “desire.”

Published on: August 13, 2017

Court Discusses Procedural Issues

by Stephen Bilkis

In this estate case, petitioner appealed an order and judgment (one paper) of the Supreme Court, Suffolk County, dated February 10, 1981, as denied his motion for summary judgment and thereupon dismissed a writ of habeas corpus. By order dated July 25, 1983, this court remitted the matter to the Supreme Court, Suffolk County, to hear and report, and held the appeal in abeyance in the interim.

Pursuant to an order of this court, this matter was remitted to the Supreme Court to hear and report on the issue of whether the appellant’s failure to appear on March 7, 1978, the date set for the hearing on a petition to adjudge him in contempt of court for noncompliance with a turnover order in a probate proceeding, constituted a voluntary waiver of his right to be present and proffer evidence in his defense. Initially, we note that a prompt evidentiary hearing on this issue was obstructed for over three years by the appellant’s numerous, meritless attempts to appeal directly to the Court of Appeals or collaterally attack this court’s order dated July 25, 1983.

At an evidentiary hearing commenced on September 25, 1986, the appellant’s former wife, who is an attorney, testified as a witness. According to the witness, on March 7, 1978, the appellant was of counsel for her client in the trial of a matrimonial action before a Justice, in the Supreme Court, Bronx County. Since the testimony of a witness had not been completed on March 6, 1978, the Justice directed the parties to return with counsel the next day to continue the trial. To her knowledge, the appellant was on trial before the Justice the entire day of March 7, 1978. The witness conceded that she had not attended the trial of the matrimonial action on either March 6 or 7, 1978, but maintained that she knew the aforenoted facts were true from having read the trial transcript when the judgment in the action was on appeal.

Published on: July 9, 2017

Court Decides Whether 1958 Will has been Revoked- In re Grant’s Will, 334 N.Y.S.2d 780 (N.Y. Surr. Ct. 1972)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a testator properly revoked a prior will.

As long as he (or she) is not mentally incapacitated, a testator has the right to revoke a will at any time. Under New York EPTL § 3-4.1, there are 3 ways to revoke a will. 1. The testator can intentionally, physical destroy the will by ripping it up, burning it, cutting, shredding it, or in some other way destroying it. If the testator instructs another person to destroy the will, then that would serve as a revocation as well. 2. The testator can write and execute a new will. Doing so would automatically revoke a prior will and codicils, if any. To make his intentions absolutely clear, in the new will the testator can include a clause stating that the new will revokes any prior wills and codicils. Executed under the proper circumstances, a holographic or nuncupative will would also revoke a prior will. 3. The testator can revoke a will by creating a document (other than a new will) indicating his intention to revoke his will.

In In re Grant, decedent Grant was a resident of Kings County, New York, but spent time in the Barbados and had real property in the Barbados. He also had personal property in New York. In 1958 the decedent executed a will in New York in which he left his real property in Barbados to two of his sisters. He left his residuary estate which consisted of personal property in New York, to one of his brothers. He had another sister and another brother who did not receive anything under the 1958 will.

Published on: June 24, 2017

Is Service of Process on a Public Administrator Sufficient to Confer Personal Jurisdiction?

by Stephen Bilkis

The unique issue before the court is whether service of process upon the Public Administrator is sufficient to confer personal jurisdiction over an estate: (a) which petitioner claims is worth less than $10,000, (b) where no probate proceeding has been initiated and (c) where no letters of administration have been issued. The Public Administrator has specially appeared in this proceeding to contest service of process upon it on behalf of the named estate respondent. Co-Respondent seeks dismissal of the entire proceeding based upon petitioner’s failure to serve a necessary party, to wit: the estate.

The Petitioner is a cooperative housing company organized under the Mitchell-Lama law. Pursuant to the Rules and Regulations governing such cooperative, on August 14, 1991 petitioner obtained a certificate of eviction from HPD authorizing petitioner “to immediately commence any legal proceedings deemed appropriate for the termination of a tenancy” against both “the Tenant (deceased) and co-respondent Occupant.” The certificate of eviction mentions in part that co-respondent who also appeared as a respondent in the administrative proceeding, submitted to the administrative tribunal a will purportedly made by the tenant in which the co-respondent’s daughter and co-respondent are named as the sole beneficiaries. The administrative tribunal rejected his argument that as his mother’s beneficiary he was entitled to live in the apartment.

It is uncontested that the aforementioned will was never admitted to probate and that otherwise no estate representative, either permanent or temporary, was ever appointed by the Surrogates Court. Petitioner thereafter commenced this summary dispossess-holdover proceeding. Service upon the estate of the decedent was made by service upon the Public Administrator.

Published on: March 23, 2017

Proponent of a will claims that objectant does not have legal standing to object – Potenza’s Will, In re, 19 Misc.2d 107 (N.Y. Surr. Ct., 1957)

by Stephen Bilkis

In this case the court must determine whether an objectant to probating a will has standing to do so. Under New York law, only those with an interest in the proceeding have the legal right to file an objection.

The decedent, Potenza, died on August 8, 1956. She was survived by a number of brothers and sisters as well as an alleged surviving husband, Alessandrello. Although the decedent and Alessandrello were married on August 8, 1953, Potenza questioned the validity of the marriage because she believed that the Alessandrello was previously married in Italy and that he never divorced his previous wife. Potenza left a will dated November 9, 1955, in which she left nothing to Alessandrello. She stated the reason for not leaving him anything was because of her belief that his marriage to his first wife was not legally terminated. The will was submitted for probate, and Alessandrello filed an objection. Alessandrello’s objections to the will are based on lack of testamentary capacity, fraud, duress and undue influence. Further, Alessandrello asserts that he has an interest in the estate as the spouse of the deceased.

The proponent of the will filed a motion to dismiss Alessandrello’s objections on the ground that he lacked status to object to the will. According to New York law, in order to object to a will, you must have status or standing to do so. This means that the objectant must have a pecuniary interest in the proceeding. Generally, standing is limited to distributees or beneficiaries. Distributees, also referred to as “heirs at law,” are those who would receive less under the contested will than they would receive if there were no will. Beneficiaries who have standing are beneficiaries under the contested will who would receive less under the contested will than they would under a prior will. If Alessandrello was legally married to Potenza at the time of her death, then he would have status. Otherwise, he would not.