New York Probate and Estate Administration Lawyer Blog

Published on: July 22, 2017

Case Reviews Rules of Will Construction

by Stephen Bilkis

In this probate case, a trustee bank, requests for the construction of an article of the will of herein decedent.

A Kings County Probate Lawyer said that decedent died in 1949 leaving a will which he had executed in 1919, some 30 years before his death which was duly admitted to probate. In Article THIRD, the will created a trust for the life income benefit of testator’s wife. Upon her death, the principal was to be paid to son and if he should predecease to his issue. In fact, the son predeceased the testator himself as well as his mother the income beneficiary without issue. It that contingency, the will directed the Trustee– ‘to pay over, transfer and deliver the principal of the trust fund to and among my next of kin in equal shares but Per stirpes and not Per capita.’

The direction is clearly to distribute the principal among Testator’s next of kin. The issue is–‘as of what date are the next of kin to be determined (1) 1919 the date of execution of the will; (2) 1949 the date of testator’s death or (3) 1975 the date of death of the income beneficiary, testator’s wife?’

Published on: July 16, 2017

Proceeding Examines Using Attesting Witnesses in Probate Cases

by Stephen Bilkis

In this probate proceeding examinations of attesting witnesses have been held and on October 6, 1997 the examination of the surviving spouse, the named executrix and proponent of the will, was scheduled as part of the SCPA 1404 examination under a recent amendment which authorizes the examination of the executor and proponent prior to the filing of objections if the will offered for probate contains an in terrorem or no contest clause as this will does.

Present at the time of the examination was a reporter from Newsday who insisted on being present during the examination of the surviving spouse to which the attorneys for the parties objected. The court requested counsel to adjourn the deposition so as to permit Newsday an opportunity to submit its position in writing. Subsequently, counsel for Newsday filed with the court a letter dated October 9, 1997 citing In the Matter of the Estate of Daniel P. O’Connell, 90 Misc.2d 555, 394 N.Y.S.2d 816, which holds that an examination of attesting witnesses to a will is a “sitting” of the court for purposes of section 4 of the Judiciary Law providing that sittings in every court should be public except for specific proceedings. The O’Connell court stated, in part, that such an examination of attesting witnesses is held before this court with all parties attending, with a court stenographer present and subject to all of the applicable rules of evidence. It is thus a sitting of this court which should be open to the public.

On the other hand, it is clear that if examinations under SCPA 1404 are in the nature of depositions, then the cases have consistently denied the press access to such pre-trial proceedings.

Published on: July 15, 2017

Court Looks at Burden of Proof to Set Aside a Trust

by Stephen Bilkis

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.

Published on: July 9, 2017

Probate Court Decides Will Construction Issue

by Stephen Bilkis

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.’

Published on: July 9, 2017

Court Decides Whether 1958 Will has been Revoked- In re Grant’s Will, 334 N.Y.S.2d 780 (N.Y. Surr. Ct. 1972)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a testator properly revoked a prior will.

As long as he (or she) is not mentally incapacitated, a testator has the right to revoke a will at any time. Under New York EPTL § 3-4.1, there are 3 ways to revoke a will. 1. The testator can intentionally, physical destroy the will by ripping it up, burning it, cutting, shredding it, or in some other way destroying it. If the testator instructs another person to destroy the will, then that would serve as a revocation as well. 2. The testator can write and execute a new will. Doing so would automatically revoke a prior will and codicils, if any. To make his intentions absolutely clear, in the new will the testator can include a clause stating that the new will revokes any prior wills and codicils. Executed under the proper circumstances, a holographic or nuncupative will would also revoke a prior will. 3. The testator can revoke a will by creating a document (other than a new will) indicating his intention to revoke his will.

In In re Grant, decedent Grant was a resident of Kings County, New York, but spent time in the Barbados and had real property in the Barbados. He also had personal property in New York. In 1958 the decedent executed a will in New York in which he left his real property in Barbados to two of his sisters. He left his residuary estate which consisted of personal property in New York, to one of his brothers. He had another sister and another brother who did not receive anything under the 1958 will.

Published on: July 2, 2017

Proponent Moves for Judgement Pursuant to CPLR 4404

by Stephen Bilkis

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.

Published on: July 1, 2017

Nonresident asked to Furnish Security Costs Under Section 282 of Surrogate’s Court Act

by Stephen Bilkis

The proponent moves for an order directing the respondent, to furnish security for costs pursuant to section 282 of the Surrogate’s Court Act, on the ground that he is a nonresident. The respondent opposes the motion on the ground that: “An examination of the records of this court will reveal that the said respondent merely filed a notice of appearance herein. He filed no answer”.

The proponent alleges that his attorney was served with a copy of respondent’s objections to the propounded instrument The records, however, do not disclose the filing of the original objections (Surrogate’s Ct. Act, Â§ 147) with proof of service thereof (Kings Co. Surrogate’s Ct., rule XIII), nor the payment of the filing fee required therefor (Surrogate’s Ct. Act, Â§ 29-a, subd. 15).

The primary issue presented, therefore is whether the facts stated constitute the respondent a contestant within the purview of section 282 of the Surrogate’s Court Act, which provides: “282. In any proceeding where an issue is raised by answer or objection by or on behalf of a nonresident of the state of New York against the proponent of a will such proponent shall be entitled in the discretion of the surrogate to have the person or persons raising such issue give security for costs.” That section further provides that the Surrogate may dismiss the “objections” or “answer” if the order granting the motion be not complied with.

Published on: June 24, 2017

Is Service of Process on a Public Administrator Sufficient to Confer Personal Jurisdiction?

by Stephen Bilkis

The unique issue before the court is whether service of process upon the Public Administrator is sufficient to confer personal jurisdiction over an estate: (a) which petitioner claims is worth less than $10,000, (b) where no probate proceeding has been initiated and (c) where no letters of administration have been issued. The Public Administrator has specially appeared in this proceeding to contest service of process upon it on behalf of the named estate respondent. Co-Respondent seeks dismissal of the entire proceeding based upon petitioner’s failure to serve a necessary party, to wit: the estate.

The Petitioner is a cooperative housing company organized under the Mitchell-Lama law. Pursuant to the Rules and Regulations governing such cooperative, on August 14, 1991 petitioner obtained a certificate of eviction from HPD authorizing petitioner “to immediately commence any legal proceedings deemed appropriate for the termination of a tenancy” against both “the Tenant (deceased) and co-respondent Occupant.” The certificate of eviction mentions in part that co-respondent who also appeared as a respondent in the administrative proceeding, submitted to the administrative tribunal a will purportedly made by the tenant in which the co-respondent’s daughter and co-respondent are named as the sole beneficiaries. The administrative tribunal rejected his argument that as his mother’s beneficiary he was entitled to live in the apartment.

It is uncontested that the aforementioned will was never admitted to probate and that otherwise no estate representative, either permanent or temporary, was ever appointed by the Surrogates Court. Petitioner thereafter commenced this summary dispossess-holdover proceeding. Service upon the estate of the decedent was made by service upon the Public Administrator.

Published on: June 24, 2017

Court Discusses Executive Estoppel

by Stephen Bilkis

Indicted for multiple counts of handgun possession and a single count of possession of weapons with intent to sell, the defendant, waived a jury and the case was tried by the court. Decision was reserved pending submission of briefs. This is the decision and its reasoning.

The case could have been tried on an agreed statement of facts; the only issue for the court to decide and upon which my decision turns is the defendant’s state of mind during the time he purchased and stored the handguns. On April 15, 1985, pursuant to a search warrant, officers of the New York City Police Department searched the defendant’s room in a YMCA and recovered 14 handguns and a quantity of ammunition. The defendant had been employed as a cab driver and hoped to open a sporting goods store; the weapons had been purchased as stock for the yet to be opened store. The police learned of his cache through his procurement of the necessary federal licenses to make the initial wholesale purchases.

On March 25, 1985, a federal inspector visited his room at the “Y” to conduct an administrative inspection of the premises listed on the defendant’s federal firearm’s license; two citations resulted. Defendant contested the citations in the form of a “Notice of disagreement” wherein he argued that since he was not presently conducting a retail business in his YMCA room, he was not in violation of the particular regulations; he served the notice upon both the federal agency and the Police License Bureau. The visit of April 15 was the official response.

Published on: June 14, 2017

Court Rules on Ante-Nuptial Agreement – Simms’ Will, In re, 273 N.Y.S.2d 494, 51 Misc.2d 540 (N.Y. Surr. Ct., 1966)

by Stephen Bilkis

Petitioner Jankowitz is a niece by the half blood of decedent Simms. Jankowitz’s father and Simms were half brothers. Jankowitz and Simms, entered into an antenuptial agreement in 1961 in which Simms agreed to leave her a testamentary gift of $25,000. The two were then married in accordance with the requirements of the rites of the Jewish faith. In January 1962, the marriage was annulled. The matrimonial judgment declaring the marriage void was based on section 5 of New York’s Domestic Relations Law which provides that a marriage between “an uncle and niece” is incestuous and void. However, it does not expressly address whether a marriage by an uncle and niece by the half blood is also incestuous.

The petitioner received alimony. In 1965 Simms died, leaving a will. The petitioner filed an objection to the will because the will did not contain the bequest of the $25,000 agreed to in the antenuptial agreement. The court dismissed her objections saying that she lacked standing since she was not an interested party. In order to have standing to contest a will, you must be an interested party. Typically interested parties would include distributees because they would be entitled to share of the estate in the absence of a will. For example, the surviving spouse would be a distributee, as would the children of the deceased. However, a former spouse would not be a distributee. Other interested parties would include any beneficiary who would have benefited under a prior will. Because the court concluded that the petitioner did not qualify as an interested party, it dismissed her objections.

The petitioner did not give up. In April, 1966, she sought a construction of the will. The court declined to entertain the petition.The petitioner now moves to compel the executors to render and settle their account, asserting that she is a creditor of the estate because of the antenuptial agreement and also because of unpaid alimony.