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Widow Questions Will Construction


In rendering her account for judicial settlement, the executrix-widow has presented a number of questions for adjudication, including construction of the will. Objections were filed by the decedent’s daughter (a devisee and residuary legatee), and a report was filed by the guardian ad litem appointed to represent the daughter’s two children who are trust beneficiaries.
A pretrial conference was held resulting in a stipulation entered on the record February 4, 1970 by which most of the objections were disposed of or withdrawn, and certain agreements were made subject to the approval of the court which will now consider all questions.

A Probate Lawyer said that the testator died on October 24, 1968 after having made a will and codicil which were admitted to probate on November 27, 1968. The will was made on November 19, 1964 while the testator was married to one MD, now deceased. Subsequent to her death he married petitioner ED and made a codicil on September 4, 1968. The codicil contained certain specific bequests and a devise, modified certain provisions in the will and in all other respects confirmed and ratified the same.

A New York Estate Lawyer said that all the parties seem to be in accord regarding the facts and the various questions to be determined and have waived a hearing. The court will, therefore, attempt to dispose of all questions without referring specifically to the pleadings submitted.
At the time of his death the testator was maintaining seven savings bank accounts in his own name ‘in trust for’ various persons and it is evident from the language in his will and codicil that he was very much aware of them. Three accounts were in trust for his daughter E, two for her children, V and P, one for his nephew J and one for his niece MY. It is conceded that all the bank books were in the testator’s possession at the time of his death, that the testator did not complete any of such gifts in his lifetime by an unequivocal action or declaration such as delivery or notice to any beneficiary. Neither have any of the parties pointed to any decisive act or declaration of its affirmance or revocation by the decedent during his lifetime, and, therefore, a presumption arises that an absolute trust was created as to each balance on hand at the death of the testator’. It has accordingly become a common practice in this state to call such accounts ‘Totten Trusts.’

A Bronx Probate Lawyer said that the court must, therefore, look to the language of the will and codicil to determine whether the testator showed any particular intention regarding those trust accounts. Article ‘Third (a)’ of the will refers generally to all of them and the codicil refers specifically to those accounts maintained in trust for the two grandchildren.

The arguments here take divergent positions. On behalf of the infant children it is urged that the language of the will does not revoke the Totten Trusts in their favor and the amounts thereof should go directly to the trustee without being subject (except as a last resort) to administration expenses and debts. Counsel for the estate argues otherwise, as discussed below.

Brooklyn Probate Lawyers said that the daughter urges that the language of the will confirms and does not revoke the three Totten Trust accounts in her favor, that the same passed to her outside the will. The attorney for the estate urges that all of the Totten Trust accounts were revoked, in effect. The court has examined all of the cases cited by the estate and finds that they are distinguishable.

In Mr. D’s will we find express references to the Totten Trust accounts which do not revoke them. It is clear that he owned ample property otherwise, real and personal. There were also three other accounts held jointly with his wife, and the will shows that he had in mind his other real and personal property. The decision of the Court of Appeals in Matter of Krycun Estate, 24 N.Y.2d 710, 301 N.Y.S.2d 970, 249 N.E.2d 753, rev’g32 A.D.2d 616, 300 N.Y.S.2d 64) is applicable here. The language of the will in that case was ‘I give and bequeath any and all funds on deposit to my credit, in any bank at the time of death, to the persons named in Paragraph Fifth the amount equal to the percentage specified in Paragraph Fifth. The decedent had four Totten Trust bank accounts at the time of her death and also two other bank accounts in her name alone. A pertinent fact was that two of the four trust accounts were established after drawing a prior will.

The Court of Appeals unanimously held, contrary to the finding of the Appellate Division, that the language of the will did not show such a clear intention. In the judgment of this court the following rule, stated in Krycun (24 N.Y.2d 710, 301 N.Y.S.2d 970, 249 N.E.2d 753) is determinative of the question here: ‘If the money on deposit in the four trust accounts comprised all or most of the assets of the estate or if the trust accounts were the only bank accounts in the decedent’s name, that would be a strong indication that the testatrix intended to revoke the Totten Trusts. Such, however, was not the case. The money on deposit in the trust accounts only comprised a little more than one third of the total estate, and as indicated earlier the testatrix had two bank accounts in her name alone. We conclude, therefore, that the language in paragraph SEVENTH, in itself, under the facts of this case, is insufficient to overcome the Presumption of nonrevocation. In such a case it is necessary to scrutinize the surrounding circumstances and the will as a whole, very carefully in determining the true intention of the testatrix.’ It is this court’s opinion that the language in the will and the circumstances shown in the papers presented all ‘manifest an intention’ on the part of Mr. Dougherty not to revoke but rather to confirm all his Totten Trusts, except those for the grandchildren treated below.
The only conclusion this court may reach is that Article ‘Third (a)’ of the will expressly confirms the Totten Trust accounts for those beneficiaries named therein, other than the infant grandchildren.

On the other hand, the court finds that the two trust accounts in the names of the grandchildren were expressly revoked by the codicil which modified the will and gave the proceeds to a trustee to hold the same, collect the income and to use it until the grandchildren reach twenty-one years of age. The codicil provided for further disposition in case of the death of either child before reaching that age. The effect intentionally wrought by the testamentary dispositions is therefore inconsistent with and vastly different from what would have been achieved if those accounts had not been so treated in the codicil. If left intact the proceeds would have gone directly to the children on the testator’s death, as absolute gifts.

These dispositions in trust for the two infant grandchildren are accordingly held to be specific dispositions to the trustee within the meaning of EPTL 13–1.3. This makes them subject to abatement and apportionment for the payment of estate obligations but only to the extent and in the order therein set forth.

A person may place his money to a bank account or security with the instruction that upon his death, whatever in that account will pass to his beneficiary/ies. If you would like to do the same for you love one, call the Kings County Estate Attorney and Kings County Probate Lawyers of Stephen Bilkis & Associates.

We can also assist you in preparing your own will or the probation of a will. In addition, our Kings County Estate Administration Attorney can assist you in your accounting or final settlement of an estate. Call us now.

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