Articles Posted in Wills

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Petitioner is the niece of the testator. In January, 1961, she and testator entered into an ante-nuptial agreement in which testator agreed to bequeath $25,000 to her. Testator and petitioner were thereafter married in accordance with the rites of the Jewish faith. In January, 1962, the marriage was annulled, the judgment awarding petitioner alimony. Testator died in April, 1965. Petitioner filed objections to probate of his will. Her objections were dismissed on the ground she was not a person interested in the probate proceeding. In April, 1966, petitioner sought a construction of the will. The court declined to entertain the petition inasmuch as the will was wholly unambiguous insofar as petitioner was concerned. The will does not contain the bequest of the $25,000 agreed to in the ante-nuptial agreement.

Petitioner moves to compel the executors to render and settle their account. She asserts she is a creditor of the estate because of the ante-nuptial agreement and also because of unpaid alimony. The executors dispute the enforceability of the agreement and claim the alimony was paid. In response petitioner states she rejected the tender of the alimony after this proceeding was commenced on the ground that the tender did not include interest.

The court construes the filing of the petition, based on the said claims of the petitioner, to be a sufficient presentation of the claims of which the executor had previous knowledge, and the executors’ answer to the petition to be a sufficient rejection of the claims within the intendment of section 208–a of the Surrogate’s Court Act.

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In a proceeding to settle the account of the executor of the decedent’s estate, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated July 21, 1989, as, after a nonjury trial, dismissed certain of her objections to the final account.

The son is the executor of the estate of his father, the decedent herein. According to the terms of the decedent’s will, the executor was to receive a specific bequest of corporate stock, valued at approximately $144,000.

The remainder of the estate, valued at approximately $673,000, was to be equally divided between the son and his sister, the appellant. However, filed several objections to the probate of the will. Prior to the trial of her objections, a stipulation was entered into in open court whereby, in consideration of the son paying her $75,000, she agreed to withdraw her objections to the probate of the will. Subsequently, an amended final account was filed by the son. The daughter objected to this amended account on the ground, inter alia, that it credited the estate with paying the $75,000 settlement. This had the effect of increasing her pro rata share of the estate taxes. After a nonjury trial on this issue, the Surrogate’s Court concluded that the stipulation of settlement required the $75,000 to be paid by the estate and not the son personally. We disagree.

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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 the 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 the husband had with the City of New York, which were paid to the second wife 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 spouses prior to 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, his wife, 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).

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This matter comes before the Court by reason of the objection of certain legatees of the decedents herein to that portion of the intermediate accounts filed by the Executor which allocates certain fire insurance proceeds in the sum of $16,813.20 for ultimate distribution to a church.

The decedents, husband and wife, presumably died simultaneously in a fire in their home at Lyons, New York, on December 13, 1959. Decedents left reciprocal wills which were duly admitted to probate in Wayne County on January 15, 1960. On that day Letters Testamentary on the wills of the spouses, both late of the Town of Lyons, New York, were issued to the City of Detroit, Wayne County, Michigan.

The Executor of the Estate, deceased, now petitions for the Judicial Settlement of his first intermediate account in the two estates. In such petitions asks that this Court determine to whom the $16,813.20 insurance settlement, received on account of the fire loss to the real estate of the decedents at Butternut Street, Lyons, New York, should be paid.

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This is a petition to modify restrictions on an endowment fund, pursuant to section 8-1.1 of the Estates, Powers and Trusts Law or, in the alternative, section 522 of the Not-for-Profit Corporation Law. Petitioners, trustees of a university, seek an order authorizing the subdivision of an endowment fund created by a testamentary bequest to the College of Medicine. The Attorney General of the State of New York (on behalf of ultimate charitable beneficiaries) has reviewed the current audit of the fund and raises no objection to the relief requested in the petition.

The decedent died on March 9, 1985. Her last will and testament was admitted to probate by a decree of this court dated April 5, 1985. Decedent was a graduate of the University, a member of the Board of Trustees and a benefactor of the University. In September 1986, the University received $1,500,000 from the estate of the deceased.

The University states that the income from the fund exceeds the amount required to fund a chair in clinical medicine. Specifically, the income exceeds the amount that can be utilized under the University’s guidelines. The guidelines for endowment funds provide payment of a salary to the professor appointed to the professorship and expenses including laboratory space and research services. Beginning in 2007, the University has required $2.5 million to fund an endowment for a full professorship and $1.5 million to fund an endowed associate or an assistant professorship. The currently expendable income from the Uris professorship generates annual expendable income of $242,284. A current endowment of $2.5 million generates expendable income of $107,500.

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This is a proceeding to construe and reform the last will and testament of a decedent who died on August 31, 2006 survived by four adult children. The will was admitted to probate by decree dated March 7, 2007, and the children were appointed as the coexecutors of the estate. The court has appointed a guardian ad litem to represent the disabled daughter’s interests in this proceeding. Jurisdiction is complete. The guardian ad litem has filed his report, and the matter has been submitted for decision.The daughter has filed a document entitled “Response to Executor/Fiduciary Petition for Construction of Will” in which she terms herself “petitioner.” The guardian has submitted a report in which he informs the court that after an article 81 hearing on April 23, 2008, the judge rendered a decision wherein he concluded that the daughter has certain deficiencies and limitations and further concluded that son would be appointed as daughter’s guardian with certain limited powers, which the ward does not enumerate.

Although the New York State Department of Health (DOH) has no current claim or pecuniary interest, it was cited and appeared in this proceeding by its attorney, the Attorney General of New York. DOH consents to having the will reformed to name trustees for the ARTICLE FOURTH trust, but takes no position as to who should be named as trustees. DOH opposes Irwin’s request to reform the ARTICLE FOURTH trust into a supplemental needs trust. DOH asserts that reforming the trust to create a supplemental needs trust is not necessary or appropriate given the language the decedent used in the will to pay Susan all of the net annual income of the trust without any trustee discretion or interference about how the money is to be used. DOH points out that the will postdates the enactment in 1993 of EPTL 7-1.12, the statute that authorizes the establishment of supplemental needs trusts for individuals with severe and chronic or persistent disabilities.

In opposing the establishment of a supplemental needs trust, DOH points to the decedent’s direction to the trustees to provide Susan with the “lifestyle that would provide for her the standard of living which she had enjoyed during [the decedent’s] lifetime. I direct that my Trustees provide her with the proper residence, a full time companion, all her physical needs, recreation, support, maintenance and welfare to the fullest entend [sic] possible.” DOH acknowledges that the payment of income from the trust to daughter will likely disqualify her from some governmental benefits. DOH argues that it is for the court or for a guardian of daughter’s property to determine whether Susan’s best interests are served by receiving the income payments from the ARTICLE FOURTH trust or whether she requires the creation of a self-settled supplemental needs trust.

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In 1970 a group annuity contract plan was entered into by defendant Company and a hospital as contractholder. On April 25, 1972 the company issued its certificate to a doctor, which named him as a participant in that group annuity plan.

The certificate had originally been issued on April 4, 1972 with the same designated beneficiaries, but the name was misspelled. In a handwritten note, a request was made to correct the spelling and as a result company issued the corrected certificate dated April 25, 1972, referred to supra.

The decedent, who was the first wife and the mother of their two sons, died on August 23, 1973. Approximately one year after her death the doctor remarried. His new wife was the plaintiff in this action. The doctor died in February, 1979 and his will, executed March 3, 1976, was admitted to probate in March, 1979.

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This is a proceeding to construe the last will and testament of a testatrix who died on April 18, 2010, survived by five children. Her will, dated September 1, 2006 (the “Will”), was admitted to probate on July 2, 2010 and letters testamentary issued to petitioner, one of her children. Article SECOND of the Will established a credit shelter trust for her husband, with remainder to her children. Article THREE left the “rest, residue and remainder” of her estate to her husband outright. Her husband predeceased her and she provided in Article FOURTH that if her husband predeceased her, she left “all the rest, residue and remainder of my estate, real, personal and mixed and wheresoever situated”

The estate is sufficiently large to generate a New York State estate tax. Article FIFTH of the will provides that “All estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of my estate”. The executor asks that the Court construe the gift to real property to the devisee in Article FOURTH(A) as a preresiduary gift and the remainder clause of Article FOURTH(B) as the residuary estate. The executor brings this construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

In the Will in question, Article FIFTH directs that the payment of estate taxes be paid from the residuary estate. The problem is that the Will contains two residuary clauses. The first is found in the preamble to Article FOURTH, which disposes of the “all rest, residue and remainder of my estate, real , personal and mixed and wheresoever situated” of the testator’s estate if the testator’s husband predeceased the testator. The second is Article FOURTH(B), which purports to dispose of the “rest and remainder” of the testator’s estate after the devise of real property in Article FOURTH(A).

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In this Probate case, Petitioner moves for summary judgment on her entitlement to take an elective share of the decedent’s estate pursuant to EPTL 5-1.1-A. Petitioner filed a petition seeking a decree determining that she is entitled to take her elective share against the estate, and that her notice of election was properly served, filed and recorded as provided by law.

The respondents filed a verified answer alleging various affirmative defenses1 and counterclaims seeking to: (1) have the alleged marriage between the decedent and petitioner deemed null and void ab initio, and to annul the marriage nunc pro tunc; (2) dismiss the petition in its entirety; (3) vacate petitioner’s notice of election; and (4) award the estate damages for the costs of this proceeding. Alternatively, if petitioner is not disqualified as a surviving spouse, they seek an award of compensatory damages equal to the elective share, plus interest and costs of the proceeding for the loss to the estate resulting from petitioner’s fraudulent conduct.

The decedent died on June 16, 2006, survived by two sons, the coexecutors herein, and four grandchildren from a prior marriage. Petitioner served as the decedent’s caretaker during the last decade of his life. The decedent’s will dated July 10, 1982, was admitted to probate on October 30, 2006. Letters testamentary were issued to the nominated coexecutors on that date. The decedent’s children and grandchildren were the sole beneficiaries under the will.

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Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by him.

Mrs. VY died on August 27, 2003 a resident of Massapequa, New York. Her son, petitioner DJ, and her daughter, KR, survived her. Her will of September 30, 1970 and a codicil thereto-dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to petitioner. The will provides that the residuary estate be divided equally between the two children but that KR, if unmarried, be given a two year right to occupy the decedent’s Massapequa home provided she pay real estate taxes. KR resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

As with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement.

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