New York Probate and Estate Administration Lawyer Blog

Published on: June 11, 2016

Surrogates Court Called to Establish Lost Will

by Stephen Bilkis

This is a proceeding brought before the Surrogate’s Court, Kings County, to prove the last will and testament of AEF – to establish a lost will pursuant to the provisions of Section 143, Surrogate’s Court Act.

On 11 February 1958, the decedent AEF died.

According to the subscribing witnesses of the will, on 4 February 1958, the decedent duly executed a will in accordance with the provisions of Section 21, Decedent Estate Law, and that, at the time of execution, he was fully competent to execute a will and was under no restraint.

Published on: June 10, 2016

Petitioner Files for Custody of Child

by Stephen Bilkis

This is a proceeding for the custody of minors under Article 6 of the Family Court Act brought before the Family Court of Kings County.

The petitioner is the natural mother of a child born in 1976 in Brooklyn.

The respondent is the child’s paternal grandmother who was appointed in December 1977by the Surrogate of Kings County as guardian of the person for the child.

Published on: June 9, 2016

Decedent Purposefully Excludes Sons from Will

by Stephen Bilkis

By decree, Surrogate’s Court, Kings County, entered on or about September 8, 1992, which, upon a directed verdict after a jury trial, admitted to probate an instrument purporting to be the last will and testament of the deceased, unanimously affirmed, without costs.

We note first that the purported will itself, dated July 30, 1990, states that decedent was deliberately making no bequests of any significance to the objectants, his two sons, because he believed that they had excluded him from their lives. Evidence at trial established that decedent had not communicated with one son for some twenty years, had had a strained relationship with the other, and that his daughter, the proponent of the will and beneficiary of decedent’s house, commercial property, and residuary estate, had resided with and cared for decedent in his final years after he had suffered a debilitating stroke in December 1989.

Both medical and nonmedical evidence at trial established that decedent had difficulty speaking after suffering the stroke, but eventually regained some conversational capacity. Although decedent apparently was better able to converse in Yiddish, there is no credible evidence that he could not communicate in English. Several witnesses established that decedent, although handicapped verbally as a result of the stroke, still got around, albeit often by wheelchair, carried on his business affairs, and did not appear to be mentally infirm.

Published on: June 8, 2016

Court Discusses Will Construction Issue

by Stephen Bilkis

The testatrix died January 10, 1914 leaving a will which was admitted to probate April 15, 1914. By paragraph ‘Fourth’ of her will she left her residuary estate in trust, and in substance provided that income be payable to a grandnephew for life, and upon his death that the trust be distributed to such of his children or their issue in such proportions as he might be will appoint, the power of appointment being limited, however, to his children or their issue who survived him, and in default of any such will or any such appointment, that the trust pass to the children of the grandnephew and the issue of any who had died per stirpes.

By paragraph ‘Fifth’ of the will testatrix provided that in case the grandnephew dies ‘intestate after me without lawful issue him surviving’ the trust shall be distributed to ‘my heirs at law and next of kin’. Such grandnephew died without issue on October 20, 1957, but whether or not he died intestate is questioned. The reason for the question is because he left a will under which he gave his entire estate to his mother and named her executrix. His mother, however, had predeceased him so that his will was wholly ineffective as a dispositive testamentary instrument as well as ineffective to name an executor. The will was, nevertheless, admitted to probate in another county, and letters of administration issued to one of his distributees who has since died.

Since the grandnephew had no children, the limited power of appointment could not have been and was not exercised and for the same reason the gift-over to children and issue of the grandnephew under paragraph ‘Fourth’ in default of appointment could not take effect. The result is that testatrix must be considered intestate as to the disposition of the trust after death of the income beneficiary unless some other provision of the will prevent such intestacy. If intestacy does result distribution must be to decedent’s heirs and next of kin determined as of the date of her death in 1914.

Published on: June 7, 2016

Court Looks at Construction of Charitable Trust

by Stephen Bilkis

This proceeding was originally commenced by the son of Mrs. NED, now deceased, who was testator’s niece and one of his two distributees, for a construction that the charitable trust created under paragraph Tenth of testator’s will is invalid. The special guardian for testator’s half-sister, who was testator’s other distributee, takes a similar position. Both distributees and four other persons were given lifetime specified annual legacies under the will and codicil.

Thereafter the said son, who is a residuary legatee under his mother’s will and one of her coexecutors, in his representative capacity, and his mother’s other coexecutor made themselves parties to this proceeding by adopting, amending and supplementing the original petition. The conservator appointed for testator’s half-sister, by a separate instrument adopted the petition and the amended and supplemental petition herein.

The special guardian urges that a hearing be held to ascertain the facts surrounding the execution of an agreement dated December 12, 1936 by and among his ward, Mrs. NED, the nominated corporate executor, and the Attorney-General of the State of New York. Under said agreement the objections to probate of the testator’s will and codicil, which had been interposed by testator’s half-sister, were withdrawn, conditioned upon the payment of a substantial sum of money to each distributee, in addition to the benefits given to each of them under the will.

Published on: June 6, 2016

Deceased Leaves Majority of Estate to Charity

by Stephen Bilkis

JB died a resident of the City of Poughkeepsie, Dutchess County, New York, on April 5, 1954, leaving a Last Will and Testament (and Codicil) which were thereafter on the 30th day of April, 1954, duly admitted to probate in this Court. At the time of his death testator was survived by his wife Mrs. JB and his brother MR. TB. On October 18, 1965, some 11 1/2 years after probate, a petition was filed by Mrs. JB, the widow, praying for a determination of the validity, construction and effect of said Will, particularly of paragraphs ‘FOURTH’, ‘FIFTH’, and ‘SIXTH’, whereby it is alleged that more than 50% Of decedent’s estate was left to a religious association in violation of Section 17 of the Decedent Estate Law. This section provides as follows:

‘No person having a husband, wife, child, or descendant or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. The validity of a devise or bequest for more than such one-half may be contested only by a surviving husband, wife, child, descendant or parent. When payment of a devise of bequest to such society, association, corporation or purpose is postponed, in computing the one-half part of such society, association, corporation or purpose, no allowance may be made for such postponement for any interest or gains or losses which may accrue after the testator’s death. The value of an annuity or life estate, legal or equitable, shall not be computed upon the actual duration of the life, but shall be computed upon the actuarial value according to the American Experience Table of Mortality at the rate of four per centum per annum. Such value shall be deducted from the fund or property, which is subject to the annuity or life estate, in order to ascertain the value of a future estate or reminder interest passing to such society, association, corporation or purpose.’

The Last Will and Testament of Mr. JB, after making certain specific bequests and naming his wife Mrs. JB (petitioner), his brother Mr. TB and his friend and attorney Mr. DM, as executors, provided as follows:

Published on: May 31, 2016

Court Decides Uncontested Proceeding for Reformation of Will

by Stephen Bilkis

This is an uncontested proceeding for reformation of Article FIFTH of decedent’s last will and testament dated November 21, 1979, as amended by Article II of a codicil thereto dated March 24, 1982 (collectively, the “will”). Decedent died on December 12, 1984. The will was admitted to probate by decree of this court.

Petitioner, the sister of the decedent, is a co-trustee of the trust created under Article FIFTH of the will (the “Trust”) for the benefit of decedent’s son, MR. BB, who suffers from chronic physical disabilities, including malfunctioning kidneys, for which he is receiving dialysis treatment. On July 14, 2006, following the death of MR. JJ, who had been serving as co-trustee with petitioner, successor letters of trusteeship were issued by this court to MRS. LL, who is petitioner’s daughter as well as a remainderman of the trust.

Under Article III of the codicil, a trustee who is also a beneficiary of the trust is prohibited from (1) exercising discretion to pay or not to pay income or principal from the trust; (2) determining whether a beneficiary of the trust is disabled; (3) terminating any trust or life estate thereunder; and (4) exercising discretion to allocate receipts or expenses between principal and income. Petitioner and MS. LL, who are remaindermen of the trust as well as the co-trustees, are thus unable to act in respect to these decisions.

Published on: May 30, 2016

Surrogate Court Decides Validity of Will

by Stephen Bilkis

This petition was brought before the Surrogate’s Court, Kings County to prove the last will and testament of AAC, and for a determination as to the validity, construction or effect of the disposition of property contained in the said last will and testament of the decedent.

The testator was a physician. He made a holographic will which was admitted to probate. By the decree, all questions of construction proffered by the petitioners and the fixation of the fees of the special guardians were reserved for future determination.

As maintained by the two special guardians, the Court found no difficulty in upholding the validity of the testator’s testamentary scheme. Although inartistic in form, the testator’s intentions in the will were clear.

Published on: May 29, 2016

Plaintiff Files Motion for Summary Judgment

by Stephen Bilkis

This is a motion for summary judgment filed by plaintiff as executor under a last will and testament before the Supreme Court, Special Term, Kings County.

The plaintiff filed a motion for summary judgment under Rule 113 of the Rules of Civil Practice. This action is brought pursuant to Section 500 of the Real Property Law to have a mortgage cancelled of record on the ground that it is outlawed by the statute of limitations pursuant to Section 47-a, Civil Practice Act.

In the answer, general denials and two affirmative defenses were stated, namely: (1) that on 17 September 1949, the mortgagors acknowledged the mortgage and the indebtedness in writing, thereby extending the statute of limitations, and (2) that sometime after 17 September 1949 and prior to the expiration of the statute of limitations, upon information and belief, the mortgagors absented themselves from the jurisdiction of the instant court in that they or either of them were then and still are residing in Italy.

Published on: May 28, 2016

Petitioner Claims Undue Influence in Will Contest

by Stephen Bilkis

In a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated April 11, 1986, as, upon a ruling made after close of all the evidence at a jury trial dismissing all her objections as a matter of law, dismissed her third objection alleging that the will was procured by the undue influence of the petitioner, admitted the will to probate and awarded letters testamentary to the petitioner.

The testimony at the trial established that the decedent had executed a will in 1977 which would have distributed her estate equally to her two sisters, who were then living, and the proponent of the will in question, the surviving son of a third sister. In the event either of the decedent’s two sisters predeceased her, their shares would go to the objectant, the daughter of one of those sisters. In December 1977 the decedent fractured a hip bone and the proponent of the will came to her aid and assisted her in getting to the hospital. A few days after the decedent’s accident, the proponent of the will ended his employment as a tenured college professor and devoted his energies to assisting his aunt in her affairs, primarily acting as her financial advisor. Specifically, he executed a power of attorney in favor of him; the decedent’s securities were removed from her safe deposit box by proponent of the will and he transferred them to a box in his name; the bank accounts were transferred by the proponent of the will into an account in the joint names of the decedent and the proponent of the will, and he signed the decedent’s name on the account application at her request; he arranged for the dividend checks from the decedent’s securities to be deposited directly into another joint account which was opened in a similar fashion; and the bank statements from the joint accounts were sent to the proponent of the wills home although the proxy materials were sent to her. In addition, the proponent of the will assisted the decedent in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.

In 1981, the proponent of the will drafted and typed a new will for the decedent which named the proponent of the will as the sole beneficiary and executor of her estate. Although by that time the two sisters had died, no provision was made in the new will for the objectant.