New York Probate and Estate Administration Lawyer Blog

Published on: March 23, 2016

Court Listens to Petition to Modify Restrictions on an Endowment Fund

by Stephen Bilkis

This is a petition to modify restrictions on an endowment fund, pursuant to section 8-1.1 of the Estates, Powers and Trusts Law or, in the alternative, section 522 of the Not-for-Profit Corporation Law. Petitioners, trustees of a university, seek an order authorizing the subdivision of an endowment fund created by a testamentary bequest to the College of Medicine. The Attorney General of the State of New York (on behalf of ultimate charitable beneficiaries) has reviewed the current audit of the fund and raises no objection to the relief requested in the petition.

The decedent died on March 9, 1985. Her last will and testament was admitted to probate by a decree of this court dated April 5, 1985. Decedent was a graduate of the University, a member of the Board of Trustees and a benefactor of the University. In September 1986, the University received $1,500,000 from the estate of the deceased.

The University states that the income from the fund exceeds the amount required to fund a chair in clinical medicine. Specifically, the income exceeds the amount that can be utilized under the University’s guidelines. The guidelines for endowment funds provide payment of a salary to the professor appointed to the professorship and expenses including laboratory space and research services. Beginning in 2007, the University has required $2.5 million to fund an endowment for a full professorship and $1.5 million to fund an endowed associate or an assistant professorship. The currently expendable income from the Uris professorship generates annual expendable income of $242,284. A current endowment of $2.5 million generates expendable income of $107,500.

Published on: March 23, 2016

pro 339

by Stephen Bilkis

This is a proceeding to construe and reform the last will and testament of a decedent who died on August 31, 2006 survived by four adult children. The will was admitted to probate by decree dated March 7, 2007, and the children were appointed as the coexecutors of the estate. The court has appointed a guardian ad litem to represent the disabled daughter’s interests in this proceeding. Jurisdiction is complete. The guardian ad litem has filed his report, and the matter has been submitted for decision.

A Kings County Estate Lawyer said that the daughter has filed a document entitled “Response to Executor/Fiduciary Petition for Construction of Will” in which she terms herself “petitioner.” The guardian has submitted a report in which he informs the court that after an article 81 hearing on April 23, 2008, the judge rendered a decision wherein he concluded that the daughter has certain deficiencies and limitations and further concluded that son would be appointed as daughter’s guardian with certain limited powers, which the ward does not enumerate.

Although the New York State Department of Health (DOH) has no current claim or pecuniary interest, it was cited and appeared in this proceeding by its attorney, the Attorney General of New York. DOH consents to having the will reformed to name trustees for the ARTICLE FOURTH trust, but takes no position as to who should be named as trustees. DOH opposes Irwin’s request to reform the ARTICLE FOURTH trust into a supplemental needs trust. DOH asserts that reforming the trust to create a supplemental needs trust is not necessary or appropriate given the language the decedent used in the will to pay Susan all of the net annual income of the trust without any trustee discretion or interference about how the money is to be used. DOH points out that the will postdates the enactment in 1993 of EPTL 7-1.12, the statute that authorizes the establishment of supplemental needs trusts for individuals with severe and chronic or persistent disabilities.

Published on: March 19, 2016

Court Decides Validity of Hospital Lien

by Stephen Bilkis

This is an appeal from an action brought before the Supreme Court, Appellate Division, Second Department, to determine, inter alia, the validity and extent of a hospital lien filed by defendant NYC Health and Hospitals Corporation.

On 7 November 1975, the Supreme Court, Kings County, issued an order which (1) denied plaintiff’s motion to strike defendant A Hospital Services’ affirmative defense that the action against it was barred by the contractual period of limitations contained in the applicable group insurance contract, and (2) granted that defendant’s cross motion for summary judgment.

Plaintiff appealed.

Published on: February 12, 2016

Petitioner Requests Probate of Will Pursuant to SCPA 1407

by Stephen Bilkis

This is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated March 2, 1981, the original of which cannot be located; the decedent died April 4, 1981. The petitioner is the decedent’s daughter-in-law, the surviving spouse of the decedent’s post-deceased son. At the time of her death in 1981, the decedent’s only distributees were her son and her estranged spouse. She resided in a house owned by her estranged spouse. The decedent’s only asset was a home on the same block which was then occupied by the son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the son advised her that the decedent had left the residence in which they were residing to him. She also claims that she was not aware that any steps needed to be taken regarding the property until after the son’s death in April 2005, when she attempted to place the house on the market for sale.

A waiver and consent has been filed by the executor of the estate of the decedent, decedent’s estranged spouse who post-deceased the decedent. A renunciation and waiver and consent have also been filed by the son of petitioner and decedent’s son.

Pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will. It appears that the execution of the original instrument was supervised by an attorney permitting the inference that the statutory requirements were met (Matter of Spinello, 291 AD2d 406 [2002]), thus satisfying the requirement of proof of due execution. The court is further satisfied that the original instrument’s provisions have been established by a photocopy which is a true and complete copy of the original instrument as executed (SCPA 1407[3]).

Published on: February 1, 2016

Court Hears Petition for Summary Judgment

by Stephen Bilkis

In this probate proceeding, the proponent, one of the decedent’s daughters and the sole residuary legatee under the propounded instrument dated March 8, 1983, seeks leave to move for summary judgment more than 120 days after she filed a note of issue. In the event that the first branch of the application is granted, the proponent moves for summary judgment dismissing the objections to probate interposed by one of her sisters and admitting the will to probate. The objectant’s papers in opposition only address the proponent’s motion for summary judgment.

The issue in this case is whether the motion for summary judgment dismissing the objections to probate should be granted.

The court said that CPLR 3212 (a) application for leave to move for summary judgment may only be granted “on good cause shown.” Although the proponent’s motion was not filed with the court until more than eight months after the note of issue was filed, the objectant is primarily responsible for the proponent’s delay in moving for summary judgment because the objectant requested additional disclosure after the note of issue was filed and then failed to conduct the requested deposition in a timely fashion. Specifically, after the note of issue was filed, the objectant moved to strike it and sought further disclosure. That application was granted to the extent that the objectant was granted leave to conduct a deposition that she requested no later than approximately five months after the date the note of issue was filed. The parties thereafter extended the time to conduct the deposition for a period of approximately two more months. After the objectant’s counsel cancelled an agreed-upon deposition date, the proponent’s counsel notified him that he would not agree to any further extensions without a court order. The objectant never moved for another extension to conduct the deposition and the instant application was filed approximately one week after a pretrial conference with the court.

Published on: January 30, 2016

Petitioner Brings Motion Compelling Appearance of Proponent

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 (Surrogate’s Court Act, § 48; Matter of Joslin’s Estate, 74 Misc. 332, 134 N.Y.S. 229).

The issue in this case is whether petitioner’s motion for an order directing the proponent, to appear for an examination before trial to enable petitioner to frame objections to the propounded instrument bearing date March 10, 1961 should be granted.

Published on: January 28, 2016

Court Decides Status of Unwitnessed Holographic Will

by Stephen Bilkis

The petitioner, a sister of the testator, presents an unwitnessed holographic instrument executed January 9, 1968 (‘January instrument’) and also a duly executed instrument (which has been proved as a will) dated February 20, 1968 (‘February will’). The January holographic instrument necessarily must be denied probate. It was executed in New York; the decedent was not a member of the armed forces; it is unwitnessed. (EPTL 3–2.2, 3–2.1.) As already noted the February will has been duly proved.

The January instrument disposes ‘of my entire personal estate’ to petitioner. The February will provides: ‘FIRST: I ratify and confirm all wills heretofore made by me at any time in every respect, except insofar as the same is inconsistent with the provisions of this codicil. SECOND: I direct that any monies realized from any and all Stocks and Bonds in my name be divided equally between: (listing three brothers and his sister).’

The petition presents an issue under the doctrine of ‘incorporation by reference’ as applied to wills. (see Law Revision Commission Report (1935) p. 431 et seq.; 1963 Report Bennett Comm.; Rept. No. 6.1B pp. 286–350.)

Published on: January 24, 2016

Petitioner Asks for Interpretation of Residuary Clause

by Stephen Bilkis

The residuary clause of the will of the decedent dated December 2, 1999, which 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.

The 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 decedent’s nephew died on November 25, 2000, without issue and the decedent died on November 30, 2000. The persons who would take the decedent’s estate in intestacy are a niece, and a great nephew. The decedent’s niece has filed a consent to the relief requested in the petition for construction. The decedent’s nephew defaulted in appearing on the return day of the proceeding. The attorney-draftsperson of the will, has filed an affidavit stating that when the 1997 will was redrafted in 1999, using computer software “some lines from the residuary clause were accidentally deleted.”

Published on: January 22, 2016

Court Hears Proceeding to Declare Living Trust Invalid

by Stephen Bilkis

There are three proceedings pending in the estate of the decedent: (1) a miscellaneous proceeding to declare the decedent 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 the trustee of the decedent 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.

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 one of the daughters has alleged that the decedent’s 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.

Published on: January 20, 2016

Petitoner Moves for Judgment

by Stephen Bilkis

The defendant moves for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action. The complaint alleges that plaintiffs are sons of the decedent, there is no indication that they are the only children, and that decedent prior to her death employed the defendant, an attorney, to prepare a will for her execution. It is claimed that decedent directed the defendant to provide for a residuary clause naming plaintiffs as legatees thereof. The decedent could neither read nor write English and she executed the will relying, it is claimed, on defendant’s representation that the residuary clause had been prepared as directed whereas, in fact, the residuary clause was omitted from the will. Although decedent has been dead since January 30, 1961, there is no allegation that the purported will has been admitted to or offered for probate. No copy of the purported will is attached to the complaint nor are any of its provisions pleaded so that the court may know what provisions, if any, were made for the plaintiffs in the purported will. No allegation is made as to the identity of the decedent’s heirs-at-law who would succeed to the residuary estate in the absence of a provision for the disposition thereof in the will.

The issue in this case is whether defendant’s motion for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action should be granted.

The plaintiffs urge the sufficiency of their complaint on the basis of two California cases. They claim that Goldberg v. Bosworth, 29 Misc.2d 1057, 215 N.Y.S.2d 849 (Special Term, Supreme Court, Kings County, 1961) follows the California decisions. In the Biakanja case, a will was denied probate because the defendant who drew it, a notary public, not an attorney, notarized the will instead of having it subscribed by attesting witnesses. The plaintiff was the sole legatee named in the will and by reason of the denial of probate resulting solely from defendant’s action, he received one-eighth of the estate instead of all of it. The defendant was held liable. In the Lucas case, the defendant attorney in attempting to create a testamentary trust violated the rule against perpetuities and the trust was held invalid. The beneficiaries thereof brought suit. The court sustained the complaint on the theory that the beneficiaries, although not in privity with the defendant attorney, were the primary objects of testator’s bounty and thus the express beneficiaries of the agreement between the testator and defendant attorney for the execution of the will.