Articles Posted in Wills

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In an action, inter alia, to set aside a conveyance of certain real property, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County as granted the plaintiffs’ cross motion to disqualify the law firm from representing him in the action.

The court ordered that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is denied.

The defendant correctly contends that the Supreme Court erred in disqualifying the law firm from representing him in this action. The disqualification was based on an alleged conflict of interest arising from the law firm’s previous representation of the deceased aunt of the plaintiff in a real property transaction with the defendant.

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A widower, died in Kings County, on the fifth day of June, 1973, leaving a last will and testament that was thereafter duly admitted to probate. He left him surviving three adult children, two daughters and a son, all of whom he named as executors of his will, and as residuary legatees.

The will is a handwritten one, although it does not qualify as holographic. He dictated it to his daughter, in the presence of a legatee; and another who wrote it out in longhand.

Because of the verbiage used in the second sentence of the first paragraph, the son-executor petitioned the Surrogate’s Court for a construction. After trying in vain to settle the matter amicably, the Surrogate conducted a hearing. In his decision he said: “The parties shall submit a list of those items included as ‘decorative contents’ to the Court. If they are unable to agree on a division, a Referee will be appointed to supervise a division by lot. It is from the decree entered on his decision that this appeal is taken.

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This is a case where the State Tax Commission appealed from the order of Supreme Court, Appellate Division, Second Department which order affirmed an order of the Surrogate which on appeal affirmed a pro forma taxing order fixing and assessing the estate tax pursuant to article 10-C of the Tax Law, upon the estate of a decedent.

The decedent died a resident of the State of New York, leaving a will which was admitted to probate, letters testamentary having been issued to three (3) executors. An estate tax appraiser was appointed pursuant to provisions of section 249-m et seq. of the Tax Law who made appraisal and filed report with the Surrogate of Kings County. The report showed that decedent owned stocks, bonds and other property valued at more than $184,000 which constituted his entire estate. The decedent also carried life insurance, proceeds of which in the sum of $372,385.49 were payable to designated beneficiaries other than executors.

Debts and administration expenses amounted to more than $336,000. Charitable, public and similar gifts and bequests amounted to 10,000. Exemptions pursuant to section 249-q of the Tax Law were allowed in the sum of $100,000. The pro forma taxing order provided for a total tax of $726.58. The ground of appeal from such taxing order was that portion of debts of estate had been deducted from proceeds of insurance policies payable to beneficiaries other than executors and that such deduction was erroneous.

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In this proceeding to settle an intermediate account of bank as trustee of two trusts, the appeals are from two decrees of the Surrogate’s Court, Kings County. The trustee appeals from so much of the first decree as (1) adjudged that the trustee was guilty of gross neglect with respect to one of the trusts, the one established for the benefit of the testator’s two daughters, in failing to make the trust productive; (2) surcharged the trustee $23,298.27; (3) adjudged that a certain 1946 consent and release (referred to in the decree as made in ‘1947’) executed by the daughters was ineffective to bind them with respect to the conduct of the trustee subsequent to the date thereof; and (4) adjudged that the clause in a certain probate compromise agreement of 1926 had no legal force and effect upon the daughters, who in 1926 were infants.

The trustee, a remainderman and the executor of the estate of another remainderman appeal from so much of the second decree as (1) authorized and directed the trustee to invade the principal of the daughters’ trust by transferring it equally to the daughters and (2) terminated that trust. The trustee also appeals from the further portion of this decree which ‘confirms’ the $23,298.07 surcharge; said remainderman and executor of a remainderman’s estate also appeal from so much of this decree as failed to deny the relief requested in a petition by one of the daughters, and the daughters cross-appealed from another portion of this decree.

The decree entered October 27, 1972, affirmed insofar as appealed from by the trustee, without costs, on the opinions of the Surrogate dated July 9, 1969 and May 25, 1972. Decree entered July 30, 1973, reversed insofar as appealed from by appellants other than the daughters, on the law, and proceeding remitted to the Surrogate’s Court, Kings County, for a hearing on the issues presented by the petition and the answers thereto, limited to a determination as to (1) whether there exists a need to authorize or direct invasion of the corpus of the daughters’ trust and (2) whether the transfer to the shares of the stock of the corporation might be financially beneficial to them, thus justifying termination of the trust, with costs to abide the event. The appeals by said appellants from this decree presented no questions of fact.

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The decedent, Ms. DD, died on February 24, 2008, at the age of 92, leaving a duly executed will dated May 14, 1985. At the time of the decedent’s death, all legatees mentioned in the will had predeceased her, and any right to her estate under the will had passed to two nephews who lived in Nevada, and five grandnieces and grandnephews.

The decedent lived alone in her house in Bayside, Queens until December 2007 (hereinafter the Bayside house). The respondent, Ms. BB, lived in a nearby house on the same street. The parties stipulated that, as of 2007, Ms. BB had performed “many recurring household tasks” for the decedent, “including cooking, shopping, transportation, and bathing; and Ms. BB had obtained and kept a key to Ms. DD’s house where she frequently slept overnight.” Another neighbor also had a key and would also check in on the decedent once a day.

In December 2007 the decedent was hospitalized with a dislocated shoulder, and was discharged on January 4, 2008, to a rehabilitation facility. On or about January 9, 2008, while she was at the rehabilitation facility, the decedent consulted with an attorney, who was asked by Ms. BB to meet the decedent at the facility. The attorney had not previously dealt with either the decedent or Ms. BB. According to the attorney, the decedent told him that she wanted to give her house to Ms. BB, and if Ms. BB predeceased her, to Ms. BB’s daughter. The attorney informed the decedent that there were three ways to accomplish that end: deeding the property to Ms. BB, changing her will, or setting up a trust. The decedent said that she preferred to set up a trust, because she would retain ownership of her house and, upon her death, Ms. BB would avoid probate costs. The attorney asked the decedent about family, and she informed him that her husband died in 1984, she had no children, and she had very little contact with her family.

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Application having been made to this Court by the trustees herein for a construction of the Will of Mrs. ALF, and for instructions regarding the trust for Mrs. VR, and it appearing that Mrs. ALF died a resident of Millbrook, Dutchess County, New York, on December 28, 1939, and that her Will was duly admitted to probate in this Court on January 15, 1940, and that LLE Inc. and the Bank of New York are duly acting under letters of trusteeship issued by this Court, and it further appearing that Mrs. VR, the primary income beneficiary of one of the trusts under article Sixth of the Will of Mrs. ALF, died on May 21, 1956, and that by reason of her death that trust is terminated, and it appearing that Louis Lee Stanton and the said Bank of New York as trustees, have submitted to the Court an account of their proceedings in respect to said trust so terminated, and it further appearing that a citation was issued to all the parties interested in this proceeding and that ABB, Esq., attorney and counselor at law of Beacon, New York, was designated to receive a copy of said citation on behalf of Mr. JAV, an infant under the age of 14 years, and the matter having come on to be heard by this Court on December 13, 1956, and no one having appeared but petitioners through their attorneys, CCC, Esqs., of 15 Broad Street, New York 5, New York, with WWW, Esq., of counsel, and the Court having appointed ABB, Esq., as Special Guardian for the infant, Mr. JAV, and after receiving a copy of the Special Guardian’s Report, and a Memorandum of Law submitted by the Special Guardian on behalf of his ward, and after hearing the respective attorneys and after due deliberation thereon, the Court finds and decides as follows:

It appears that Article Sixth of the Last Will and Testament of Mrs. ALF states as follows:

‘Sixth: To my Trustees hereinafter named I give and bequeath In Trust the sum of Twenty-five thousand Dollars ($25,000) in respect to each of my grandchildren (whether heretofore or hereafter born) who shall be living at the time of my death to hold one such sum of Twenty-five thousand Dollars ($25,000) for the benefit of each of my said grandchildren me surviving, and In Further Trust to invest and from time to time to reinvest each such trust fund of Twenty-five thousand Dollars ($25,000) and collect the income therefrom and during the minority of the grandchild for whom such trust fund is held to accumulate said income and, when such grandchild shall have attained the age of twenty one years, to pay the accumulated income to such grandchild and in Further Trust after each such grandchild shall have attained the age of twenty-one years to pay to such grandchild the whole net income of said trust fund. I direct that, when each such grandchild shall have attained the age of twenty one years, my Trustees pay over to him or her Ten thousand Dollars ($10,000) of the principal of said trust fund and, when he or she shall have attained the age of twenty five years, pay over to him or her the balance of the principal of said trust fund then remaining in Trust, whereupon the trust for the benefit of such grandchild shall cease and determine. In case any grandchild who shall survive me shall die before he or she shall have attained the age of twenty-five years, upon his or her death I give and bequeath the principal of said trust fund then held in trust and the accumulations of income, if any to such person or persons, and in such portions or shares as such grandchild by his or her last will and testament, duly admitted to probate and not otherwise, shall appoint, or in default of such appointment to the issue of such grandchild him or her surviving in equal shares per stirpes, or in default of any such issue then to my issue then surviving in equal shares per stirpes.’

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The issue in this probate proceeding is that ‘Has the propounded 1958 instrument been revoked?’

Testator died in 1971, a resident of this county. He left a modest estate consisting of personal property in New York and real property in Barbados, West Indies.

In 1958 he executed a will in New York. In that will he devised his real property in Barbados to two sisters residing there. His entire residuary consisting of personal property he bequeathed to his brother residing in New York.

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In a contested probate proceeding, the objectants appeal from a decree of the Surrogate’s Court, dated November 5, 2003, which, after reserving decision on the proponent’s motion pursuant to CPLR 4404 for judgment as a matter of law, made at the close of the evidence, and after the trial ended in a hung jury, upon the granting of the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate.

Ordered that the decree is affirmed, with costs payable personally by the objectants.

After the parties rested at trial, the proponent moved pursuant to CPLR 4404 for judgment as a matter of law. The Surrogate’s Court reserved decision on the motion and submitted the issue to the jury. After the trial ended in a hung jury, the Surrogate’s Court, upon granting the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate. Contrary to the objectants’ contention, the Surrogate’s Court properly entertained the motion after the trial ended in a hung jury.

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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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