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Court Discusses Will Provisions


A New York Probate Lawyer said the holographic will of the testator, a physician, has been admitted to probate. The Court finds no difficulty in upholding the validity of the testator’s testamentary scheme as maintained by the two special guardians. Although inartistic in form the will makes testator’s intentions clear.

He first provided that if survived by his wife he gave all his ‘earthly possession to her without limitations whatsoever. In the event that I should outlive her then my estate shall be disposed of as follows.’ Then, stating that his estate was worth over $100,000, he directed the ‘administrators’ of his estate, later naming his two brothers-in-law as ‘executors and administrators,’ to pay all funeral and entombment expenses and all legitimate obligations outstanding. The rest of the will contains provisions for the use and sale of his residence, investment of estate funds, payment of annuities to his children, distribution of the whole estate to them or their children, and educational benefits to them, subject to various conditions. The testator died on January 24, 1954, survived by four children, 24, 22, 19 and 16 years old respectively at the time of his death. The three oldest children are married.

A New York Estate Lawyer said the Court construes the will as creating a single trust of his entire net estate, both real and personal, to be held until the youngest child, AB, becomes 22 years of age, to wit, July 29, 1960, or his earlier death. The alternative is not specified in the will but is supplied by law, thus avoiding invalidity of the trust by reason of a fixed termination date. The insertion of the date, July 29, 1960, was merely to indicate the date on which the youngest child would attain his twenty-second birthday and not to fix a date for the termination of the trust or that it was, in all events, to continue until that time. During the continuance of the trust or until the real property is sold any unmarried children may live in the residence mentioned in the will sharing the fixed charges and maintenance expenses of the property.

Nassau County Probate Lawyers said the fact that now only one child, the youngest, is unmarried and cannot reside alone in the house and pay its expenses does not invalidate this provision. The testator explained that he gave only his unmarried children the right to occupy the residence because ‘I want no child of mine to be burdened by a brother-in-law or a sister-in-law.’ The petitioners may question the wisdom of this provision, but even so the Court may not substitute its judgment for the clear direction of testator.

Furthermore, the will does not preclude an amicable arrangement whereby the unmarried son would reside in the premises together with a married brother or sister, the former paying a proportionate share of the expenses described in the will and the latter paying to the estate a reasonable rental.

Staten Island Probate Lawyers said that during the continuance of the trust each child under 22 years of age is to receive $75 per month until he or she reaches that age, payable out of income and, if necessary, principal. In addition each child is entitled to receive $1,000 a year for four years of college education towards tuition fees and board and $1,500 a year for four years of post-graduate professional education, provided the latter is undertaken within one year after graduation from college. These payments likewise are payable out of income and, if necessary, principal and cease when the trust terminates. Upon termination of the trust upon the youngest child reaching the age of 22 or his earlier death the estate is to be distributed equally to the testator’s four surviving children, the issue of any predeceased child to take the share of their parent. Thus the present grandchild of the testator and any grandchildren born before termination of the trust have contingent remainder interests.

If, as indicated, the income of the trust estate is in excess of the required payments as aforesaid, since there is no disposition of the surplus and no direction for accumulation of income, the same is distributable equally to those presumptively entitled to the next eventual estate. They are the testator’s four children and, should any one die before the termination of the trust, their descendants if any, per stirpes (to receive in equal proportion). During the minority of a child his share of such excess income may be accumulated.

When the provision of the will is at issue seek the assistance of a Kings County Probate Attorneys to determine the real intention of the testator. With the intervention of a legal expert, all issues in relation to the probation of a will are simplified.

Call the Kings County Probate Lawyer of Stephen Bilkis & Associates and receive a legal consultation for free. We can also help you if you desire to write your own last will and testament. Call us now.

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