New York Probate and Estate Administration Lawyer Blog

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. * * *’

Published on: August 26, 2017

Beneficiary of Trust is at Issue

by Stephen Bilkis

Testatrix died on March 21, 1954, leaving surviving her son as her only distributee. Her will was admitted to probate June 2, 1956. The delay was caused by difficulty in locating testatrix’ son. The will nominated the attorney-draftsman as executor and trustee but he renounced and the niece of testatrix and a beneficiary under the will was appointed administratrix c. t. a.

The will gives to said niece household furniture and other items and the balance of an account in the South Brooklyn Savings Bank after payment therefrom of funeral and estate expenses. Paragraph ‘Fourth’ creates a trust of the residuary estate for the benefit of testatrix’ son. The article in question reads as follows: “FOURTH’ All the rest, residue, and remainder of my estate, both real and personal, of whatever nature, and wherever situate, I give, devise and bequeath in TRUST, for a period of five (5) years from the date of my death, to my son, said trust is for the purpose of providing necessary clothing and medical care for my son. At the end of the five year period, if my son, cannot be located, then I give, devise and bequeath the remainder of this trust to my aforementioned niece. If my son should die before the five year period has elapsed, I give, devise and bequeath the remainder of the trust to my aforementioned neice. As trustee of this trust I hereby appoint my lawyer with power to invade the trust for the above mentioned purposes, no bond being necessary for the faithful performance of his duties as trustee.’

This proceeding seeks a construction of paragraph ‘Fourth’ of the will to determine the intention of testatrix with respect to whether testatrix’ son is entitled to the remainder of the trust or whether the niece is entitled to the remainder.

Published on: August 19, 2017

Attorney General Brings Action Regarding Revised Charter of New York City

by Stephen Bilkis

This action is in the nature of quo warranto, brought by the attorney general upon his own information, pursuant to section 1948 of the Code of Civil Procedure. The action is primarily against certain persons alleged to have usurped and entered into the office of city magistrates in the boroughs constituting the Second division in the city of New York. Pursuant to section 1954 of the Code, the persons who claim to have been elected to said offices, and rightfully entitled thereto, are also made defendants.

The complaint proceeds upon the theory that under section 1392 of the Revised Charter of New York City, enacted in 1901, there was a valid election in the fall of that year, at which certain persons were elected to the office of city magistrates in the boroughs of Brooklyn, Queens, and Richmond, who are prevented from discharging the duties thereof and receiving the emoluments belonging thereto by the unlawful usurpation of said office by the defendants above named. Said defendants, by their answer, challenge the constitutional validity of said charter provisions, and allege their own legal incumbency of said office pursuant to legal appointments made prior to said election. To this answer the plaintiffs interposed a demurrer on the ground that it is insufficient in law.

For the purposes of administration of criminal justice, the greater city of New York, under its original charter, enacted in 1897, was divided into two divisions. In the first division were the boroughs of Manhattan and the Bronx; in the second the boroughs of Brooklyn, Queens, and Richmond. Section 1390. When said charter went into effect, the office of city magistrate was in existence in the former city of New York, having been established by chapter 601 of the Laws of 1895. Section 1392 of said charter provided that the city magistrates in office when it took effect should continue to hold their office until the expiration of their respective terms, and should be known as the city magistrates of the First division; that their successors should be appointed in the same manner, and have the same powers and duties, as provided by said chapter 601, Laws 1895. The act just referred to provided that such magistrates should be appointed by the mayor for terms of 10 years. On account of the different conditions which prevailed in the boroughs of Brooklyn, Queens, and Richmond, the charter provisions relating to the office of city magistrate in these boroughs were more elaborate than those above summarized.

Published on: August 13, 2017

Court Discusses Procedural Issues

by Stephen Bilkis

In this estate case, petitioner appealed an order and judgment (one paper) of the Supreme Court, Suffolk County, dated February 10, 1981, as denied his motion for summary judgment and thereupon dismissed a writ of habeas corpus. By order dated July 25, 1983, this court remitted the matter to the Supreme Court, Suffolk County, to hear and report, and held the appeal in abeyance in the interim.

Pursuant to an order of this court, this matter was remitted to the Supreme Court to hear and report on the issue of whether the appellant’s failure to appear on March 7, 1978, the date set for the hearing on a petition to adjudge him in contempt of court for noncompliance with a turnover order in a probate proceeding, constituted a voluntary waiver of his right to be present and proffer evidence in his defense. Initially, we note that a prompt evidentiary hearing on this issue was obstructed for over three years by the appellant’s numerous, meritless attempts to appeal directly to the Court of Appeals or collaterally attack this court’s order dated July 25, 1983.

At an evidentiary hearing commenced on September 25, 1986, the appellant’s former wife, who is an attorney, testified as a witness. According to the witness, on March 7, 1978, the appellant was of counsel for her client in the trial of a matrimonial action before a Justice, in the Supreme Court, Bronx County. Since the testimony of a witness had not been completed on March 6, 1978, the Justice directed the parties to return with counsel the next day to continue the trial. To her knowledge, the appellant was on trial before the Justice the entire day of March 7, 1978. The witness conceded that she had not attended the trial of the matrimonial action on either March 6 or 7, 1978, but maintained that she knew the aforenoted facts were true from having read the trial transcript when the judgment in the action was on appeal.

Published on: August 12, 2017

Court Hears Action to Set Aside Conveyance of Real Property

by Stephen Bilkis

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.

Published on: August 12, 2017

Son Petitioner Brings Action for Will Construction Issue – Sparacio’s Estate, Matter of, 402 N.Y.S.2d 857 (N.Y. App. Div., 1978)

by Stephen Bilkis

In this case the Supreme Court considered whether a decedent’s intention was to make a testamentary gift or if the language was actually precatory. If the language was precatory, it is optional, and the executors are not required to enforce it. On the other hand, if the language was mandatory, then the executors are required to enforce it.

Sparacio, a well-known attorney and professor of law, died on June 5, 1973. He left a handwritten will dated April 22, 1970. In it he named all three of his adult children as executors of his will and as residuary legatees. While the will was a handwritten one, it was not a holographic will. A holographic will is one that is handwritten and signed by the testator, but not witnessed. Sparacio dictated the will to one of his daughters who wrote it out in longhand. His other daughter was present.

In the will he left his daughter M. Sparacio his house and its decorative contents. The will also stated that it is his “wish and desire” that the other daughter, E. Maroshick, share in the contents of the house. Because the language as to how the contents of the house was to be distributed was unclear and the daughters were not able to settle the matter amicably, the decedent’s son petitioned the Surrogate’s Court for a construction. The Surrogate’s Court ordered the parties to submit a list of the “decorative contents” and for them to figure out a way to divide the property. The court further ordered that if they could not agree, then it would appoint a referee to supervise the division of the property. M. Sparacio appealed the Surrogate’s Court decision.