New York Probate and Estate Administration Lawyer Blog

Published on: January 4, 2023

Surrogate’s Court found that the language of the will was clear and unambiguous, and that the testator’s intent was to benefit the George Ballas Trust. Matter of Estate of George Ballas, 2020 NY Slip Op 50978(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

In New York, the standard for will construction is that the court will seek to determine the testator’s intent, based on the language used in the will. This is known as the “plain meaning” rule. The court will interpret the language of the will to give effect to the testator’s intent, using the words in their ordinary and commonly understood meanings.

If the language of the will is clear and unambiguous, the court will give effect to the plain meaning of the words used. However, if the language of the will is ambiguous or susceptible to more than one interpretation, the court may consider extrinsic evidence, such as the testator’s declarations, to determine his or her intent. Overall, the goal of will construction in New York is to determine the testator’s intent as accurately as possible, and to give effect to that intent to the greatest extent possible.

In the Matter of Estate of George Ballas the court was asked to interpret the terms of a will with respect to the distribution of the residuary estate.

Published on: January 2, 2023

Medical evidence not sufficient to show lack of capacity. Matter of Estate of Paul Tucker, 2020 NY Slip Op 31604(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

Lack of capacity to make a will in New York refers to a situation where the testator (the person making the will) does not have the mental capacity to understand the nature and consequences of his or her actions when executing the will. In order to have the capacity to make a will in New York, the testator must have a general understanding of the nature and extent of his or her property, the natural objects of his or her bounty, and the effect of executing the will. Lack of capacity may result from a variety of factors, including mental illness, dementia, or other conditions that affect cognitive functioning.

In a will contest in New York, medical evidence can be used to prove that the testator lacked the capacity to execute the will. This may involve presenting medical records, expert testimony from treating physicians, or other evidence to establish the testator’s mental state at the time the will was executed. However, just like with any evidence, the court will determine whether it is sufficient.

Background

Published on: January 2, 2023

Court determined that allegations of undue influence were speculative and not substantiated. Niola v. Sarno, 939 N.Y.S.2d 553 (N.Y. App. Div. 2012)

by Stephen Bilkis

The contested probate case in Niola v. Sarno, 939 N.Y.S.2d 553 (N.Y. App. Div. 2012) involves Maria Capuano’s will and a dispute centered on allegations of fraud and undue influence. In the context of a will contest in New York, fraud involves the intentional use of deceptive practices to manipulate or mislead the testator in the creation or execution of a will. To substantiate a claim of fraud, an objectant must provide clear and convincing evidence that the proponent of the will knowingly made false statements or engaged in deceitful conduct, with the specific intent to influence the testator’s decisions regarding the distribution of their assets. Fraudulent actions may include misrepresentations about the will’s contents, the testator’s assets, or other relevant information, leading to a disposition of property that differs from the testator’s true intentions. Proving fraud in a will contest requires a high evidentiary standard to ensure the validity and integrity of the testamentary process.

In the context of a will contest in New York, undue influence refers to a situation where an individual exerts improper or coercive pressure on the testator, compelling them to create a will that reflects the influencer’s desires rather than the genuine intentions of the testator. To establish undue influence, an objectant must demonstrate, by clear and convincing evidence, that the influencer engaged in conduct amounting to moral coercion, which significantly constrained the testator’s independent judgment and free will. This may involve tactics such as manipulation, intimidation, or exploitation of a confidential or fiduciary relationship. Courts scrutinize such claims closely, ensuring that the testator’s testamentary freedom remains intact and that the resulting will is a true reflection of the testator’s intentions rather than the product of external pressures.

Background Facts

Published on: December 28, 2022

Court of Appeals reversed decision related to whether a prenuptial agreement was unfair. In re Estate of Greiff, 703 N.E.2d 752 (N.Y. Ct. App. 1998)

by Stephen Bilkis

In the case of In re Estate of Greiff, the court was asked to determine if a prenuptial agreement that limited what a surviving spouse inherited was fair. The decision turned on who had the burden of proof of showing unfairness.

Background

Helen Greiff (plaintiff) and Herman Greiff married when Helen was 65 and Herman was 77. The Greiffs signed reciprocal prenuptial agreements that waived their respective surviving spousal rights in the event of the death of the other. Herman’s will left his entire estate to his children from a prior marriage (the children) (defendants). After Herman died, Helen filed a petition seeking a spousal share of Herman’s estate. The children objected based on the prenuptial agreements.

Published on: December 26, 2022

Court construed the will to contain missing terms that were crucial. In the Matter of the Estate of Eugenia Herceg, 193 Misc.2d 201 (2002)

by Stephen Bilkis

When crucial terms are missing from a will, a court may construe the will to contain those terms if clear and convincing evidence establishes the testator’s intent.

Background

Eugenia Herceg died leaving a will, executed on December 2, 1999. The executor of the will was Columba Pastorino. The will included a residuary clause.

Published on: December 21, 2022

Post-conceived children have equal rights as natural child to benefit from a trust. In re Martin B., 17 Misc.3d 198 (N.Y. Misc. 2007)

by Stephen Bilkis

The trustees managing seven trusts executed by Martin B. in 1969, filed request that the Surrogate’s Court, New York County provide direction on distribution of trust assets to post-conceived children of Martin B.’s deceased son, James. The court was asked to construe the terms “issue” and “descendants.”

Background

The grantor of a trust died on July 9, 2001, survived by his wife Abigail and their son Lindsay, but predeceased by his son James, who died of Hodgkins lymphoma on January 13, 2001. James, however, after learning of his illness, deposited a sample of his semen at a laboratory with instructions that it be preserved and that, in the event of his death, it be held subject to the directions of his wife Nancy.

Published on: December 19, 2022

The administrator of a donor’s estate has standing to bring an action against the donee to enforce the terms of the gift. Smithers v. St. Luke’s-Roosevelt Hospital Center, 723 N.Y.S.2d 426 (2001)

by Stephen Bilkis

Whenever someone brings initiates a lawsuit, they must have standing to sue. Those with standing generally must have a financial interest in the matter. In Smithers v. St. Luke’s-Roosevelt Hospital Center, the Appellate Division had to determine if the administrator of an estate had standing to sue a donee to enforce the terms of a gift.

Background

In a June 16, 1971 letter to St. Luke’s-Roosevelt Hospital Center (Hospital) (defendant), R. Brinkley Smithers announced his intention to make a $10 million gift to the Hospital over time to establish an alcoholism treatment center. In the letter, he retained a veto power for himself over the center’s project plans and staff appointments. As it was Smithers’ intention that the treatment center be established in a separate facility, the Hospital purchased a building and opened the Smithers Alcoholism Treatment and Training Center (Center) in 1973.

Published on: December 14, 2022

Money in a joint account with right of survivorship presumably goes becomes the property of the surviving account owner upon the depositor’s death. In re Estate of Butta, 746 N.Y.S.2d 586 (2002)

by Stephen Bilkis

Not all property owned by decedent is probate property that is subject to the decedent’s will or intestate distribution. Property that is jointly owned by the decedent with another person withs survivorship rights typically becomes the property of the surviving account owner upon the death of the other account holder. This is a rebuttable presumption.

In the case of In re Estate of Butta, the Surrogate’s Court, Bronx County was asked to determine whether a bank account was held jointly out of convenience of if it was the intention of the depositor for the other account holder to gift the account to them.

Background

Published on: December 12, 2022

Spouse of decedent can have limited access to decedent’s Google accounts. In re the Estate of Serrano, 56 Misc. 3d 497 (N.Y. Sur. Ct. 2017)

by Stephen Bilkis

The administration of an estate of a decedent requires a personal representative to identify and gain access to their property. Unlike personal property, real estate, and even financial accounts, electronic accounts of decedents can present special challenges for survivors to access. Typically, a request must be sent the custodian of the electronic records who will request a court order. In the case of In re the Estate of Serrano, the Surrogate’s Court was asked to issue a court order directing Google to allow a decedent’s surviving spouse to access the decedent’s Google accounts.

Background

The petitioner’s spouse died. The petitioner wanted to gain access to the decedent’s Google accounts, including his Google email, contacts, and calendar. The petitioner’s stated purpose was to let the decedents friends know of his passing and to close out any unfinished business. The petitioner requested access to the accounts from Google. Google responded by asking for a court order. The petitioner filed an amended affidavit with the Surrogate’s Court requesting authority to access his deceased spouse’s Google’s accounts.

Published on: December 7, 2022

In re the Estate of Wilder, 49 Misc. 3d 1044 (N.Y. Sur. Ct. 2015)

by Stephen Bilkis

Jane A. Wilder died on July 31, 2014, a resident of New Hyde Park. She was survived by one daughter, Nancy Cave, as well as Nancy’s 3 children. Under the terms of Jane’s January 17, 2014 will, the decedent bequeathed her real estate, as well as her residuary estate, in equal shares to three grandchildren: Scott Cave, John Thomas Cave, and Jessica Cave. The will names Scott Cave as executor and John Thomas Cave and Jessica Cave as successor co-executors.

Scott Cave filed a petition for probate on September 9, 2014. Preliminary letters issued to him on September 15, 2014. The petition for probate lists as estate property the real property located at 1618 Falmouth Avenue, New Hyde Park, New York (the Falmouth Avenue property).

In response, Nancy filed a motion asking the court to issue an order (1) declaring that the Falmouth Property is not part of the estate of Jane A. Wilder; and (2) directing the to amend his petition for probate to remove any reference to the Falmouth Property, and to decrease the total value of the estate accordingly.