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Published on: March 12, 2017

Executrix Requests that Surrogate Addresses New York Estate Tax

by Stephen Bilkis

This is a motion filed by the executrix requesting the Surrogate to fix the New York estate tax – Tax Law § 249–w.

The executrix made a motion to fix the tax returnable on 16 March 1972. While the State Tax Commission was duly served, no order fixing the tax has, 2 years and 9 months later, been submitted to the Surrogate. The executrix requests the Surrogate to act in his judicial, rather than administrative capacity, and to fix the tax.

The Commission appeared but made no response, formal or informal, to the relief requested by the taxpayer.

Published on: March 5, 2017

Court Discusses Power of Attorney as it Relates to Estate

by Stephen Bilkis

This is an appeal brought before the Supreme Court, Appellate Division, Second Department, Kings County.

The issue here is (1) whether a power of attorney which conferred limited realty management powers upon JSF was one “relating to an interest in a decedent’s estate” and was therefore ineffective under EPTL 13-2.3 for failure to record it in the Surrogate’s Court, and (2) whether plaintiff LCC, a corporation dissolved by proclamation of the Secretary of State for nonpayment of franchise taxes in 1978, had capacity to bring this action to enforce obligations arising out of prohibited new business conducted five years after dissolution.

The court concluded that the power of attorney was not ineffective for failure to record in the Surrogate’s Court, and that the plaintiff lacked the capacity to institute this action.

Published on: February 25, 2017

Court Discusses the Different Between a Will and a Contract

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 provided that 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 estate 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: February 23, 2017

Court Determines the Intention of the Decedent in Will Construction Case

by Stephen Bilkis

In this probate proceeding both the petitioner and the respondents ask that the propounded holographic instrument be admitted to probate but differ sharply as to construction of the will. The text of the provisions of the will reads:

‘First, after my lawful debts are paid, I give to my wife all my personal as well as all my real property wherever located together with any mixed property I may have. ‘I hereby appoint my beloved wife executrix without bond of this my last will and Testament. ‘In case of accidental and simultaneous instant death of both myself and my wife and in such case only do I direct my sister in law of 253 East 78 St New York City to be the executrix without Bond of this my last will and Testament and give and bequeath to her all my personal as well as all my real property wherever located together with any mixed property I may have. ‘I hereby appoint my wife to be Executrix of this my last Will and Testament.’

The parties have entered into a stipulation providing: ‘That the wife of the decedent herein, died on the 13th day of February, 1957, a resident of 519 West Chester Street, City of Long Beach, Nassau County, of natural causes. ‘That the decedent herein, died on the 20th day of March, 1957, a resident of 519 West Chester Street, City of Long Beach, Nassau County, of natural causes.’

Published on: February 19, 2017

Court Discusses the Exercise of Power of Appointment

by Stephen Bilkis

The father of decedent, died on April 7, 1901, a resident of the county of New York. His will was duly admitted to probate in the Surrogate’s Court of New York County on April 22, 1901, when letters testamentary were issued. The estate and trusts created under said will are administered in that county. The decedent in this proceeding had a power of appointment of the remainder of a trust created for her benefit under the will of her father. In 1942 decedent’s son, assigned his interests in said trust under the will of the father to several assignees. The propounded instrument which is the subject of this proceeding nominates decedent’s son, and his wife as executors. By her will decedent appointed one-third of the appointive property to her son, and two-thirds to a granddaughter. Citations were issued in this estate to the assignees of said son who do not oppose the probate of the will but object to the granting of letters herein to their assignor and his wife, the nominated executors.

The exercise of the power of appointment relates back to the estate of the decedent. The donor merely utilized this decedent as an instrument for the devolution of the title of his, donor’s property. The objectants have no interest in the estate of this decedent. Their interests are solely in the estate of the decedent as assignees of decedent’s son who was named in decedent’s will to receive one-third of the remainder interest of the trust created for decedent’s benefit under the will of the decedent. Whatever payments may be due the assignees will be directed in the Surrogate’s Court of New York County under the will of the decedent. As executors of this decedent, respondents will not receive any money from the Estate of the decedent in which the movants have any interest. The objections to the qualification of the nominated executors are dismissed and the motion for summary judgment is granted. Settle decree on notice.

In another case is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (241 App. Div. 768, 270 N. Y. S. 981), entered March 30, 1934, which affirmed a decree of the Kings County Surrogate’s Court admitting to probate an instrument, dated October 30, 1930, propounded as the last will and testament of the deceased, and a codicil thereto dated June 9, 1931. Objections were filed to the probate of these instruments on the ground that they were not the last will and codicil of the deceased; that they were not duly executed; that at the time they were executed the deceased lacked testamentary capacity; and that their execution was obtained by undue influence, fraud, and conspiracy. Following a trial before a jury and after the contestants had rested, the surrogate, over the objection and exception of contestants, directed a verdict admitting the instruments in question to probate.

Published on: February 19, 2017

Children Bring Suit to Determine Benefits

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.

Published on: February 12, 2017

Court Discusses Alleged Fraud and Undue Influence in Probating a Will

by Stephen Bilkis

This is a proceeding for the probate of the will of the deceased. The will was propounded by testator’s widow, and contested by 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

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

Published on: February 12, 2017

Petitioner Seeks Judicial Settlement of Final Account

by Stephen Bilkis

In a proceeding for the judicial settlement of the final account of the preliminary executors and the executors of the will of the deceased, for the period from November 1, 1995, through May 28, 1999, the petitioner appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Kings County), dated February 9, 2004, as denied his motion for summary judgment fixing his compensation as preliminary executor in the sum of $2,563,803.81 and granted that branch of the cross motion of Long Island College Hospital, Polytechnic University, Chemical Heritage Foundation, and the Attorney General which was for summary judgment limiting his compensation for all services as an executor of the decedent’s will, whether performed as a preliminary executor or as an executor, to the sum of $400,000.

The petitioners, were named co-executors in article fourteen of the decedent’s will, which provides: “The commissions payable to my executors shall be according to the New York statute then in effect, but shall in no event exceed the sum of $800,000, which amount shall be divided between my executors, if more than one shall be serving, as they may agree, recognizing the extent of the duties and the relative difficulty of the duties assumed by each or done by each in his respective tenure in office, and the remaining duties and their extent remaining after his tenure, and I direct that each executor agree in writing to that provision as a condition of qualifying.” In the event either or both nominated executors failed to qualify, nonparty Fiduciary Trust Company International of New York was named as an alternate executor. Following the death of the decedent, petitioners offered the will for probate on November 3, 1995. On the same day, they filed a petition for preliminary letters testamentary. Preliminary letters testamentary were issued on November 20, 1995. The will was admitted to probate on July 8, 1996. The preliminary letters were vacated, and letters testamentary were issued to the petitioners. On November 4, 1996, petitioner filed a renunciation of compensation provided under the will pursuant to SCPA 2307 (5). Wagner did not renounce the provision limiting his compensation as executor. On November 25, 1996, the executors, petitioners filed a successful ex parte petition for advance payment of commissions pursuant to SCPA 2311, requesting that each executor receive $200,000 on account of their commission. In his supporting affidavit, petitioner purported to preserve his right to statutory commissions under SCPA 2307 by reason of his renunciation. In July 1999, when the executors filed an account of their administration of the estate and petitioned for the settlement of their account, petitioner requested that he be awarded full statutory commissions of $5,323,112, less the $200,000 advance. Wagner only requested that the court award him $400,000 in compensation as provided in the will, of which $200,000 had been paid. The residuary beneficiaries of the estate, several charitable entities, including Long Island College Hospital, Polytechnic University, and the Chemical Heritage Foundation, as well as the Attorney General, statutory representative of charitable beneficiaries (hereinafter collectively the Charities), objected to the accounting, inter alia, on the ground that petitioner was not entitled to statutory commissions. The Charities contended that the will limited compensation to the sum of $800,000, petitioner was required to either accept the compensation cap or not serve at all, and because petitioner petitioned for preliminary letters testamentary in which he swore that he was entitled to letters testamentary immediately upon the probate of the will, he satisfied the condition precedent to qualifying by implicitly accepting the compensation provided in the will, notwithstanding his renunciation.

Contrary to petitioner’s contention, the Surrogate’s Court properly denied his motion for summary judgment to fix his statutory compensation as preliminary executor in the sum of $2,563,803.81, and granted that branch of the Charities’ cross motion which was for summary judgment, inter alia, limiting him under the will’s provisions to the sum of $400,000 as compensation for all services as an executor, whether performed as a preliminary executor or as an executor of the estate.

Published on: January 31, 2017

Proceeding Seeks to Compel Production of Wills

by Stephen Bilkis

These two proceedings to compel the production of the wills of the testator, ask the court to seal the documents which have been produced by the respondent.

By petitions dated July 25, 2008, petitioners sought to compel the New York City Police Department (NYPD) to produce documents in their possession purporting to be the wills of the testator. Pursuant to SCPA 1401, the court directed the NYPD to produce any documents in their possession purporting to be the decedents’ wills in court on August 12, 2008.

On August 12, 2008, counsel for the petitioners, counsel for the testator’s parents, and counsel for the NYPD appeared in court. The NYPD complied with the order and turned over the documents to the court. Asserting that matters contained in the documents may cause embarrassment to the decedents and their families, the petitioners, joined by the testator’s parents and the NYPD, made an oral application to seal the documents. The court declined to entertain the oral application and instead provided the petitioners, and the parents, as well as the NYPD, with an opportunity to submit their written application by August 14, 2008. In the interim, the court has maintained the relevant documents in chambers. The petitioners submitted their written application, while the testator’s parents and the NYPD did not.

Published on: January 27, 2017

Defendant moves for a Judgment on the Pleadings

by Stephen Bilkis

The defendant moves for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action. The motion is granted.

The complaint alleges that plaintiffs are sons of the decedent, there is no indication that they are the only children, and that decedent prior to her death employed the defendant, an attorney, to prepare a will for her execution. It is claimed that decedent directed the defendant to provide for a residuary clause naming plaintiffs as legatees thereof. The decedent could neither read nor write English and she executed the will relying, it is claimed, on defendant’s representation that the residuary clause had been prepared as directed whereas, in fact, the residuary clause was omitted from the will. Although decedent has been dead since January 30, 1961, there is no allegation that the purported will has been admitted to or offered for probate. No copy of the purported will is attached to the complaint nor are any of its provisions pleaded so that the court may know what provisions, if any, were made for the plaintiffs in the purported will. No allegation is made as to the identity of the decedent’s heirs-at-law who would succeed to the residuary estate in the absence of a provision for the disposition thereof in the will.

Plaintiffs urge the sufficiency of their complaint on the basis of two California cases, Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358 and Lucas v. Hamm, Cal.App., 11 Cal.Rptr. 727; 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685. They claim that Goldberg v. Bosworth, 29 Misc.2d 1057, 215 N.Y.S.2d 849 (Special Term, Supreme Court, Kings County, 1961) follows the California decisions.