Surrogate Court, Queens City, NY
February 2, 2016
Decedent passed away on August 29, 2002, and is survived by 4 children. Her 2 daughters are the petitioners, and one of her sons is the objectant. The other son is the executor of the estate.
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Court Discusses Release of Confidential Information in Decedent’s Will
In this probate proceeding, respondents Mr. AX and Mrs. AXW move to compel the co-executors of the estate, Mrs. JA, the surviving spouse of decedent, and Mr. K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. JM, Esq., and; (3) un-redacted photocopies of notes taken by Mr. JM during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.
In opposition to respondents’ motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. JM represented both decedent and decedent’s surviving spouse, Mrs. JA, in connection with their estate plan, and had confidential communications with decedent and Mrs. JA, jointly and individually, concerning Mrs. JA’s estate plan and assets, and that the contents of those communications concerning Mrs. JA’s estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties.
In actions involving the probate, validity or construction of a will, an attorney or his employee is required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. Respondents contend in their motion that these documents are not privileged as they contain information pertaining to the decedent and his will that the executors are required to disclose.
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Court Discusses NY Estate Tax Law 249
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.
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Court Discusses Whether a Power of Attorney was Valid
This is an appeal brought before the Supreme Court, Appellate Division, Second Department, Kings County.
The issue here is (1) whether a power of attorney which conferred limited realty management powers upon JSF was one “relating to an interest in a decedent’s estate” and was therefore ineffective under EPTL 13-2.3 for failure to record it in the Surrogate’s Court, and (2) whether plaintiff LCC, a corporation dissolved by proclamation of the Secretary of State for nonpayment of franchise taxes in 1978, had capacity to bring this action to enforce obligations arising out of prohibited new business conducted five years after dissolution.
The court concluded that the power of attorney was not ineffective for failure to record in the Surrogate’s Court, and that the plaintiff lacked the capacity to institute this action.
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Matter of Hickey
NY Slip OP 05895-August 25, 2016
The decedent died on July 14, 2016, without a plan for what would happen to his law office in the event of his passing. The local bar association, Tompkins County Bar Association(TCBA) moved for an Order to appoint a lawyer as a custodian of the files in decedent’s office in order to protect the decedent’s clients. TCBA also moves (Rules of Professional Conduct 22 NYCRR 1200.0) Rule 1.15 (g) for a lawyer to be appointed as a successor signatory for the decedent’s clients. The Lawyers Fund for Client Protection and The Committee on Professional Standards did not oppose.
The Court granted the motion and the TCBA was appointed as the custodian of the law firm (Matter of Van Zandt 53 AD 3d 982[2008]). The issue of a successor signatory for the decedent’s law firm was denied with the appropriate application made to the Supreme Court (Rules of Professional Conduct [22 NYCRR 1200] Rule 1.5 [g][2].
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Appellate Court Decides Validity of Duplicate Wills
In re: Lewis NY Slip Op 04674
In this case, the decedent RL, left no will. Letters of Administration were issued to her parents. The parents had renounced their interest in the estate in favor of the decedent’s brothers, RL and JL. There was a piece of property that would have stayed in the family, but for a subsequent will that was admitted to probate. That will left her estate to her ex-husband and named him as the executor.
This case was brought to the court, not by the ex-husband (he was disqualified by divorce), but by RL’s former father in law, who was named as an alternate executor and beneficiary. The father in law was not disqualified under the laws of New York which governs the decedent’s real property. This property was the main and significant asset of RL’s estate. Both the decedent’s parents and brothers filed objections.
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Petitioner Seeks Limited Letters of Estate Administration
This is an application for limited letters of temporary estate administration. Decedent executed a will in Ireland which was witnessed by the manager for the United States Lines in Ireland and the American Consul in Cork. Beside a small bequest to a friend, the entire residuary is bequeathed to the decedent’s granddaughter. The will does not name an executor. The decedent’s granddaughter petitions for probate of the will and for letters of administration c. t. a. She makes this motion for limited letters of temporary estate administration so that she can commence an action against the United States Lines before the statute of limitations runs out. This motion is opposed by one of two sisters who are distributees of decedent, on the ground that the wrongful death suit is ‘exclusively for the benefit of the decedent’s wife, husband, parent, child or dependent relative.’ She argues that the decedent’s granddaughter is none of these and that under section 118 of the Surrogate’s Court Act, letters should issue to a distributee, namely, herself, so that she might bring the action against the steamship line.
The applicable federal statute provides that the action shall be maintained by the personal representative of the decedent (Title 46, Sec. 761, U.S.C.A.). Since it appears that the will of decedent is uncontested and that on its probate the decedent’s granddaughter would be entitled to letters of administration c. t. a. as the sole residuary legatee (Surrogate’s Ct. Act, § 133, subd. 2) and would be the person authorized under the federal statute to prosecute the action, the Court will appoint her Temporary Administratrix under Limited Letters, upon qualifying according to law. Upon the will being admitted to probate, the Temporary Letters will be revoked and letters of administration c. t. a. will issue to the decedent’s granddaughter nning. Settle decree on notice.
In another case, in a probate proceeding petitioner claims that under the terms of the propounded instrument she is entitled to decedent’s net estate and to letters testamentary. The respondents have appeared and filed their consent to probate the instrument, but dispute petitioner’s claim. A construction is requested to determine whether the provisions of paragraph ‘Fourth’ are operative and dispose of decedent’s estate.
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Executrix Petitions for the Construction of a Will
On December 2, 1999 a will was admitted to probate on August 16, 2001, reads as follows: “All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate.” There is no more. The name of the intended beneficiary of the residuary is missing. As a practical matter, the residuary clause amounts to only 10% of the estate, since the will made pre-residuary bequests of 90% of the net estate.
Petitioner as executrix of the will, has petitioned for construction of the will by reading the residuary clause to be the same as decedent’s prior will dated June 18, 1997. The residuary clause of the 1997 will provided: “All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate I give, devise and bequeath to my nephew, per stirpes. In the event that my nephew, does not survive me, his share shall go to his wife.”
The nephew died on November 25, 2000, without issue and testator died on November 30, 2000. The persons who would take the decedent’s estate in intestacy are a niece, and a great nephew. The niece has filed a consent to the relief requested in the petition for construction. The nephew defaulted in appearing on the return day of the proceeding.
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Court Interpretes Living Trust
There are three proceedings pending in the estate of the decedent: (1) a miscellaneous proceeding to declare the decedent’s Living Trust dated March 19, 2001 invalid; (2) a proceeding to probate an instrument dated March 19, 2001 as the decedent’s last will and testament; and (3) a proceeding by respondent as trustee of the decedent’s Living Trust dated March 19, 2001, to judicially settle his account for the period from March 19, 2001 to May 9, 2007. On July 1, 2010, the court appointed a guardian ad litem for one of the decedent’s daughters, in all three proceedings.
The decedent died on May 9, 2007, survived by four distributees: two daughters, a son; and a granddaughter, the only child of the decedent’s predeceased son. The propounded will pours over to the living trust. The living trust provides only for the son, specifically omits the two daughters, and does not mention the granddaughter.
A Kings County Probate Lawyer said that, the guardian ad litem has filed a preliminary report in which he details his findings to date and, based upon them, recommends that he continue to represent his ward’s interests in all three proceedings. The guardian ad litem reports that the daughter has alleged that the son exerted undue influence and fraud upon the decedent at a time when he was physically ill and depressed. The guardian ad litem states that, based on his investigation, he deems it appropriate to participate in the SCPA 1404 examinations in the probate proceeding and to continue to represent his ward’s interests in all three proceedings. The court agrees with his conclusions.
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Petitioner Seeks to Compel Production of Wills
In these two proceedings to compel the production of the wills of the testator, ask the court to seal the documents which have been produced by the respondent.
By petitions dated July 25, 2008, petitioners sought to compel the New York City Police Department (NYPD) to produce documents in their possession purporting to be the wills of the testator. Pursuant to SCPA 1401, the court directed the NYPD to produce any documents in their possession purporting to be the decedents’ wills in court on August 12, 2008.
On August 12, 2008, counsel for the petitioners, counsel for the testator’s parents, and counsel for the NYPD appeared in court. The NYPD complied with the order and turned over the documents to the court. Asserting that matters contained in the documents may cause embarrassment to the decedents and their families, the petitioners, joined by the testator’s parents and the NYPD, made an oral application to seal the documents. The court declined to entertain the oral application and instead provided the petitioners, and the parents, as well as the NYPD, with an opportunity to submit their written application by August 14, 2008. In the interim, the court has maintained the relevant documents in chambers. The petitioners submitted their written application, while the testator’s parents and the NYPD did not.