Wills

Published on: May 7, 2017

Petitioner Seeks to Modify Restrictions on an Endowment Fund

by Stephen Bilkis

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.

Published on: April 30, 2017

Petitioner Seeks to Reform and Construe Will – In the Matter of Rappaport, 21 Misc.3d 919 (N.Y. Surr. Ct., 2008)

by Stephen Bilkis

In this case the Surrogate’s Court was asked to reform and construe a will. Reformation of a will involves changing the language of a will to cure a mistake so that the will is consistent with the testator’s intent.

Decedent Rappaport died on August 31, 2006. She was survived by four adult children, including petitioner I. Rappaport, and a disabled daughter, S. Rappaport. The will was admitted to probate and all of decedent’s children except S. Rappaport, were appointed as coexecutors. J. Rappaport died in December 2007. The court has appointed Bartol as guardian ad litem to represent S. Rappaport’s interests.

The will included a provision that created a trust for the benefit of S. Rappaport. The decedent bequeathed assets to the trust and stated that trustees are named. Income and principal from the trust fund were to be paid to S. Rappaport in installments as needed for S. Rappaport’s health, support, and maintenance. Upon S. Rappaport’s death, the principal from the trust was to be paid to the other children.

Published on: April 23, 2017

Court Discusses Annuity Contract

by Stephen Bilkis

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.

Published on: April 16, 2017

Court Hears Proceeding to Construe a Will

by Stephen Bilkis

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).

Published on: April 8, 2017

Petitioner Moves for Summary Judgment

by Stephen Bilkis

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.

Published on: April 7, 2017

Court Discusses Counsel Fees in Accounting Proceedings

by Stephen Bilkis

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.

Published on: April 2, 2017

Court Decide Jurisidiction in Will Contest Case

by Stephen Bilkis

In an action to recover damages for medical malpractice and lack of informed consent, etc., in which the defendant SSS Medical Center commenced a third-party action against KC, as successor executor of the estate of Mr. RR, KC appeals from an order of the Supreme Court, dated May 1, 2009, which, inter alia, denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of Mr. RR terminated by operation of law.

On July 18, 2002, the plaintiff Mr. T underwent surgery at SSS Heights Medical Center (hereinafter SSS), and Mr. RR served as his anesthesiologist. Mr. RR died on October 1, 2002. On October 21, 2002, Mr. RR’s father, Mr. X, as executor of Mr. RR’s estate, petitioned the Surrogate’s Court, New York County, to have Mr. RR’s will admitted to probate. The petition to admit the will to probate stated that Mr. RR died while a domiciliary of New York, and that KC was named in the will as successor executor. By decree dated November 25, 2002, the will was admitted to probate, and on November 26, 2002, letters testamentary were issued to Mr. X. Thereafter, Mr. X died.

In 2003 the plaintiffs commenced the main action against, among others, SSS. In 2008, SSS commenced the instant third-party action against KC (hereinafter the appellant), as successor executor of Mr. RR’s estate, seeking common-law indemnification. The appellant, a resident of Colorado, retained Colorado attorneys X&Y. On behalf of their client, X&Y entered into a stipulation with SSS, in which, inter alia, the appellant admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for Mr. RR. The stipulation also stated that SSS “will seek no recovery from the Estate of Mr. RR, M.D., except to the extent of any professional liability insurance available to the Estate of Mr. RR, M.D., deceased.”

Published on: March 26, 2017

Petitioner Requests Judicial Settlements of Accounts

by Stephen Bilkis

The petition herein prays for the judicial settlement of the accounts of the trustees and for a construction of the validity and effect of the last will and testament of testator and the appointment thereunder of Mr. E Jr. and for the issuance of letters of trusteeship to Mrs. E Jr. and for the setting of compensation of the attorneys.

The instant proceeding was brought by the petition of United States Trust Company from New York as the surviving trustee of the trust created by the will of Mr. E Sr. for his son Mr. E Jr. for (1) an instruction to the trustees as to the validity of the purported exercise by the will of Mr. E Jr. of a testamentary power of appointment pursuant to the testator’s will, (2) a judicial settlement of the accounts of the trustees, and (3) a determination of the commissions payable to the petitioner as surviving trustee.

It appears that the infants who are represented by the guardian ad litem are interested in the instant proceeding by reason of the following circumstances:

Published on: March 19, 2017

Court Attempts to Authenticate Will

by Stephen Bilkis

The case involves three issues, first, the probate of a will despite absence of witness to testify for the authenticity of the will. Second, the disallowance of a will alleged to have made under undue influence by the decedent’s heirs. Third, the denial of appeal based on forum non conveniens.

On the first issue, the Court ruled that the propounded instrument offered for probate dated March 28, 1925 was executed thirty-eight years ago. Proof has been submitted that one of the subscribing witnesses is deceased and the whereabouts of the other witness is unknown. The genuineness of decedent’s handwriting and of the deceased witnesses has been proved.

The missing witness had been associated with decedent for approximately two years prior to the execution of the propounded instrument. Thereafter, he had expressed an intention to return to his native country of Scotland. Due to the long span of years since the execution of the instrument proof of the handwriting of the witness could not be obtained despite diligent efforts by proponent to do so.

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.