New York Probate and Estate Administration Lawyer Blog

Published on: July 27, 2016

Movant Petitions for Examination of Decedent’s Widow

by Stephen Bilkis

This is a motion for an order directing the proponent, who is decedent’s widow, to appear for an examination before trial to enable petitioner to frame objections to the propounded instrument bearing date March 10, 1961, and for other relief.

The filing of a petition and service of a citation in a Surrogate’s Court proceeding is analogous to the service of a summons and complaint in an action brought in a court of record pursuant to the Civil Practice Act. Under Article 29 of the Civil Practice Act, § 288 et seq. and the Rules of Civil Practice, a party served with a summons and complaint may be afforded an examination of the complainant or other party in order to frame an answer (Cuban Telephone Co. v. Conklin, 196 App.Div. 463, 187 N.Y.S. 817). Movant, petitioner herein, is one of decedent’s distributees named in the propounded instrument, and in the probate petition and the citation served upon her. Movant is in the position of a defendant served with a summons and complaint, while proponent may be compared to a plaintiff in such an action. The fact that a pro forma answer in the nature of a general denial may be filed is no bar to such examination since a defendant may not know at the time whether he wishes to defend at all (Cuban Telephone Co. v. Conklin, 196 App.Div. 463, 465, 466, 187 N.Y.S. 817, 818, supra; Boyd v. Boyd, 276 App.Div. 1013 1014, 95 N.Y.S.2d 268, 269; Public National Bank v. National City Bank, 261 N.Y. 316-319-320, 185 N.E. 395-396; St. John v. Putnam, 128 Misc. 707, 220 N.Y.S. 146) . The present application is somewhat analogous thereto. The provisions of the Civil Practice Act apply to proceedings in the Surrogate’s Court (Surrogate’s Court Act, § 316).

A Suffolk County Probate Lawyers said that, the Surrogate has incidental powers with respect to ‘all matters subject to the cognizance of the court, according to the course and practice of a court having common law jurisdiction of such matters, except as otherwise prescribed by statute’. The Court of Appeals in one case, 248 N.Y. 67, at page 72, 161 N.E. 421, at page 423, said, ‘the powers that are specific shall hereafter be read as being ‘in addition to and without limitation or restriction on’ the powers that are general.’ Surrogate’s Court Act, § 20, subd. 11. Section 40 of the Surrogate’s Court Act confers jurisdiction upon the Court to administer justice in all matters relating to the affairs of decedents, as to any and all matters necessary to be determined in order to effect complete disposition of the matter.

Published on: July 25, 2016

Domicile of the Decedent at Issue in Will Case

by Stephen Bilkis

The decedent died on the 9th day of January, 1961, while a patient at the Wolcott Clinic, Wolcott, New York. Thereafter and on the 21st day of February, 1961, the son of the decedent, presented to this Court a petition praying that an instrument in writing dated February 5, 1955, and executed by the decedent purporting to be her Last Will and Testament, be admitted to probate by this Court, which petition alleged, that the said decedent at the time of her death was a resident of the Village of Red Creek, Wayne County, New York.

A Kings County Estate Administration Lawyer said, that thereafter and on the 11th day of July, 1961, the respondent, a niece of the decedent, a legatee under the instrument above recited, presented to this Court a petition putting in issue the domicile of the decedent at the time of her death and requesting a Hearing by the Court to determine the question above stated.

The Court also has before it the motion of the proponent questioning the standing of the respondent to raise the issue before the Court. The matters before the Court are jurisdictional. The one going to the right of petitioner to bring said petition; and the other as to whether the domicile of the decedent was within the jurisdiction of this County at the time of her death.

Published on: July 24, 2016

Petitioner Brings Case for Full and Final Settlement of Account

by Stephen Bilkis

This is a proceeding brought before the Surrogate’s Court, Kings County for judicial settlement of the first and final account of proceedings of the CM Bank, National Association, as trustee under Article “Second” of the will OF AGK, deceased, for the benefit of BMK.

This proceeding for settlement of a final trust accounting presents a question of construction occasioned by the bankruptcy of a charitable remainderman designated by the donee of a power of appointment.

On 3 March 1931, the donor of the power, AK, died. He left a 1927 will which was probated in the instant court. Under the will, the net estate shall be divided into three portions and placed in trust, each part to furnish income to one of his three children; and, upon the death of each child, the remainder interest in his or her trust shall be distributed “by valid and absolute disposition by will of such child” and in default of such exercise of the power, “as a part of the estate of such child in accordance with the statutes of descent and distribution of the State of New York.”

Published on: June 26, 2016

Petitioner Brings Will Construction Case to Court

by Stephen Bilkis

Two subscribing witnesses testified to the due execution of decedent’s holographic will and to her testamentary capacity at the time of the execution; that the last page of the instrument, the only one they saw, bore no additional writings below their signatures.

The changes in the street numbers of the addresses of the legatees under items 13 and 14 are immaterial, as well as the interlineation of the amount of the legacy of item 13, as the amount thereof was increased by figures immediately above it and that in turn was interlined and the original amount reinstated with the initials of the decedent above it; the amount of item 16 was interlined, and a lesser sum substituted therefor immediately above it, which in turn was likewise interlined and the original amount restored. Equally immaterial is the phrase in item 15 which reads ‘in payment of money ($500) she gave my sister Mae and for which I thank her.’ Those interlineations and additions being fair upon their face and unexplained by any evidence to the contrary must be presumed to have been made before the execution of the will. Crossman v. Crossman, 95 N.Y. 145, 153.

The Court finds that the following legacies were originally written in the following sums: item 6–$1,000; item 17–$100; item 18–$100; item 19-$50; and item 20-$200, which sums were interlined and other sums substituted in their places; the interlineations were made either in pencil or ink and the substituted sums in ink, which ink interlineations and substitutions are in different color ink than the original legacies, wherefore it is found that such interlineations and substitutions of different sums were made subsequent to the execution of the will.

Published on: June 25, 2016

Contestant Made Application for Order Vacating Demand for Bill of Particulars

by Stephen Bilkis

The contestant has made application to the Court for an order vacating and setting aside the proponent’s demand for a bill of particulars, or in the alternative, modifying said demand, and for such other, further and different relief as to the Court may seem necessary and proper. The proponent’s demand for a bill of particulars is directed to the allegations of fraud and undue influence in paragraph 3 of the contestant’s objections.

A Kings County Probate Lawyer said that, the application will be treated as though the proponent were seeking a bill by motion in the first instance, since it calls upon the Court to determine the nature and extent of the items, if any, which the contestant should furnish to the proponent.

It is too well settled to require citation of authority, that the proponent in a contested probate may properly require the particularization of the charges of fraud and undue influence asserted to defeat the probate. The real controversy here revolves around the extent to which such particulars ought to be furnished.

Published on: June 18, 2016

Court Decides Proceeding for Leave to Compromise for Wrongful Death

by Stephen Bilkis

This case was initiated by JC as administrator of the goods, chattels and credits which were of CP, deceased – for leave to compromise a certain claim for wrongful death and to render and have judicially settled an account of the proceedings as administrator – brought before the Surrogate’s Court of the City of New York, Nassau County.

This is a proceeding for leave to compromise an action for wrongful death and conscious pain and suffering.

On 7 June 2000, the decedent died as a result of injuries he sustained in a construction accident in Bronx, New York. He was survived by his wife and two children all of whom presently reside in Ecuador. On 13 October 2000, the court issued limited letters to petitioner, JC, decedent’s uncle, to commence the instant action.

Published on: June 17, 2016

Case Filed to Prevent Party from Being Executrix

by Stephen Bilkis

This case is a probate proceeding brought before the Supreme Court, Appellate Division, Second Department, New York.

The petitioner, JZ, appealed, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated 16 October 2007, as, after a hearing, granted those Kings of the motion of the objectant, EHP, which were to disqualify her from serving as executrix for the estate of PV and to reinstate letters of administration previously issued to the objectant.

The order was reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the objectant, EHP, which was to disqualify the petitioner was granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion was otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the objectant was denied, and the matter was remitted to the Surrogate’s Court, Kings County, for further proceedings.

Published on: June 15, 2016

Court Discusses Powers of a Surrogate

by Stephen Bilkis

This case was brought before the Court of Appeals of New York.

The issue here is the power of the surrogate to require an administrator’s bond in double the value of the personal estate in this state of JDP, who at the time of his death was a resident of New Jersey, as a condition to the grant of ancillary administration.

At the time of JDP’s death, his personal estate consisted of personal effects with a value of about $2,500 in New Jersey, and stocks and securities with a value of about $40,000, deposited with a safe-deposit company in the city of Brooklyn.

Published on: June 14, 2016

Petitioner Brings an Appeal Regarding the Value of the Estate

by Stephen Bilkis

This is an appeal from the Supreme Court, Appellate Division, Second Department brought before the Court of Appeals of New York. First, an application was filed by LK, as executrix of the last will and testament of DFK, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. Thereafter, the Surrogate of Kings County issued an order confirming the report of the appraiser. This was subsequently affirmed in an order by the Appellate Division of the Supreme Court for the Second Department. Consequently, the applicant appealed. The instant Court affirmed.

DFK died in the city of Brooklyn, leaving a last will and testament. On 10 September 1895, the will was admitted to probate. Only LK, the appellant, qualified as executrix thereof. Subsequently, she petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.

The will of the decedent, so far as material to the questions involved in this appeal, provides as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situated, unto my three sisters, MK, AK, and LK.’

Published on: June 12, 2016

Appellant Files Case Review Judicial Settlement of Will

by Stephen Bilkis

This is an appeal brought before the Court of Appeals of New York from a decision rendered by the Supreme Court, Appellate Division, Second Department, in the matter of the judicial settlement of the account of MNH and others, as trustees under HH’s will.

The trustees appealed from an order of the Appellate Division affirming a decree of the Surrogate’s Court settling their account. The instant court modified and affirmed.

The issue here is the validity and effect of certain portions of the will of HH, and the correctness of the directions contained in a decree of the surrogate of Kings county as to the disposition of certain moneys of his estate.