New York Probate and Estate Administration Lawyer Blog

Published on: February 25, 2018

Court upholds restrictions on the sale of property disposed of in a will – Bajic v. Bonanno (In re Bonanno), 2017 NY Slip Op 4436 (N.Y. App. Div., 2017)

by Stephen Bilkis

In this probate proceeding the court had to address an issue related to the construction of terms in the will related to the restriction on the disposition of real estate.

Decedent M. Bonanno died in 2002, leaving a last will and testament dated August 1, 1983. The Surrogate’s Court admitted the will to probate. The will provided that specific real estate that she owned in Queens go to her 4 children, and that it not be sold while her children remained single, and while any of them still lived in the property. It also stated that when the property was sold, the proceeds would be divided equally among her four children. Two of the decedent’s children petitioned the court for a construction of the provisions of the will related to the real property. They sought an order stating that each of 4 sibling owns a ¼ share of the property in fee simple without restriction. After filing the petition, the petitioners also filed a motion of summary judgment on the petition. The Surrogate’s Court denied the motion and the petitioners appealed.

In a summary judgment motion, the moving party has the burden of making a prima facie showing that based on the undisputed material facts, he or she is entitled to judgment as a matter of law. If the moving party is able to do this, then the burden shifts to the opposing party to rebut the moving party’s motion and show that there are material facts in dispute.

Published on: October 11, 2017

Court grants summary judgment dismissal of objections to probate where the objectants are unable to show improper execution, lack of testamentary capacity, or undue influence – Estate of West v. West, 147 A.D.3d 592 (N.Y. App. Div., 2017)

by Stephen Bilkis

In this case the Surrogate’s Court had to determine if a will should be invalidated due to improper execution, lack of testamentary capacity, and undue influence. On October 19, 2015, the Surrogate’s Court entered the will of decedent L. West into probate. An objectant, P. West, raised objections to the will, questioning its validity. The respondent moved for summary judgment that the will was indeed valid. The court granted the respondent’s motion concluding that he had successfully proven that the will was duly executed.

When someone files a motion for summary judgment, he or she is asking the court to decide immediately that the based on the undisputed facts, he or she should win the case without it going to trial. To prevail, the moving party has the burden of producing evidence that he or she is entitled to summary judgment. If the moving party is able to do this, then the burden shifts to the non-moving party to rebut the moving party’s prima facie showing.

Here, the proponent of the will moved for summary judgment asking the court to dismiss the objectant’s claim that the will is was not properly executed. In support of his motion, the proponent of the will submitted the will’s attestation clause and the affidavit and testimony of the witnesses. Thus, the proponent proved that the will was duly executed. The objectant did not successfully raise a triable issue of fact related to the will’s execution.

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 , 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 9, 2017

Court Applies Cy Pres Doctrine – 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 New York Surrogate’s Court considered a request to modify a testamentary trust to change the name of a beneficiary, based on the doctrine of “cy pres.” The cy-près doctrine allows the court to amend the terms of a charitable trust in order to keep the gift from failing. The doctrine requires that the amendment be consistent with the donor’s original intent.

The decedent died on April 13, 1968. Her will was admitted to probate on January 16, 1969. The will includes provisions naming various charities as beneficiaries, including: The Carmelite Sisters of the Aged and Infirmed, The Catholic Foreign Missionary Society of America (Maryknoll Fathers), The Nursing Sisters of the Sick Poor, The Monastery of Our Lady of Mt. Carmel, and The Confraternity of the Precious Blood. Each of these organization received a specific bequest of $5,000. The will also left the entire residuary estate to a trust for the benefit of Catholic Child Care Society and provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The trust has a remaining principal of approximately $90,000.

The petitioner, Catholic Child Care Society of the Diocese of Brooklyn, requests that the court modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of the testamentary trust established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL § 8-1.1. At the time the will was admitted to probate, Catholic Child Care Society operated two programs: St. John’s Residence for Boys and St. Joseph’s Children’s Services. In 1995 St. John’s Residence for Boys incorporated separately but continued to work with Catholic Child Care Society. In 2001, the petitioner ceased doing business. The children for whom petitioner had been providing services were transferred to other authorized agencies throughout New York City. As a result, the petitioner has filed this application pursuant to EPTL§ 8-1.1 to modify the trust. Section 8-1.1 is the statutory codification of the common law doctrine of cy pres. It gives authority to the Surrogate’s Court to direct a disposition to be applied in such manner that will most effectively accompany its general purposes.

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 27, 2017

Court Discusses Power of Surrogates

by Stephen Bilkis

This is a Mandamus case by the People, on the relation of individual. From an order of the Appellate Division in the Second Judicial Department, reversing an order of the Kings Special Term, which granted relator’s motion for peremptory writ, plaintiff appeals.

The relator was duly elected the surrogate of the county of Queens at the general eléction in 1910, and his term of office as surrogate of said county had not expired in 1915.

By chapter 443 of the Laws of 1914, which took effect September 1, 1914, chapter 18 of the Code of Civil Procedure ‘in relation to surrogates and the practice and procedure in Surrogates’ Courts’ was revised, and section 2538 thereof now provides: ‘In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, and in any proceeding for the probate of a will in which any controverted question of fact arises, the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same. The surrogate in such order must direct that such trial be had either before himself and a jury, or at a Trial Term of the Supreme Court to be held within the county, or in the county court of the county. * * *’