Articles Posted in Brooklyn

In this action for a declaratory judgment, plaintiffs appeal from a judgment where, following a trial on stipulated facts, the court dismissed the complaint. Plaintiffs are the only children of the husband and wife, both now deceased. The wife died first and the husband thereafter. Defendant is the second wife and the other defendant is the executor of the last will and testament of said husband.

Upon the death of the husband, plaintiffs commenced the within action seeking a declaration of their rights with respect to the husband’s estate. The complaint consisted of four causes of action, as follows: (1) To impress a constructive trust upon certain real property located at 141 Forest Green, Staten Island; (2) To void the right of election filed by defendant second wife under section 5-1.1 of the Estates, Powers and Trusts Law as surviving widow of the husband; (3) To impress a constructive trust upon the proceeds of a pension plan of the deceased husband had with the City of New York, which were paid to Anne as designated beneficiary at the husband’s death.; (4) To impress a constructive trust upon funds which prior to the death of the first wife had been in savings and/or checking accounts in the joint or individual names of the husband and wife, and upon other personal property which had been in the joint and/or individual names of the husband and wife prior to the wife’s death, which the husband thereafter transferred to himself and the second wife as joint tenants.

On October 17, 1967 the husband and wife had executed a joint will which provides, in pertinent part, as follows: We, in consideration of the agreement of each of us to dispose of our property as hereinafter set forth, do hereby make, publish and declare this to be our joint Last Will and Testament. First: We give to the survivor of us all our property, both real and personal. Second: After the death of the survivor of either of us, all our property, both real and personal, we give devise and bequeath unto our children (plaintiffs herein). The wife died on September 27, 1971 and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County. At the time of her death, the husband and wife owned as tenants by the entirety, two parcels of real estate, one at 3722 Clarendon Road and the other at Avenue D, in Kings County, and had a bank account in their joint names in a Brooklyn bank.

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New York Probate Lawyer said in this uncontested administratrix’s accounting proceeding, a stipulation has been submitted to the court for its approval and incorporation into the provisions of an intermediate accounting decree.

The decedent died, testate, on the 17th day of March, 1980, survived by a spouse and an infant daughter, born of the marriage between himself and his former wife, who also survived him. Pursuant to the terms of his last will and testament, dated December 6, 1972, the decedent devised and bequeathed his real and personal property, together with the maximum amount allowable as a marital deduction under federal law, to his former spouse, and disposed of the rest, residue and remainder of his estate, in trust, for the benefit of his former spouse during her lifetime. Upon the death of his said spouse, the decedent directed that the principal of the trust estate continue to be held, in trust, for the benefit of his daughter, until she attained the age of 30, at which time, it was to be transferred and paid over to her, outright, if then living, or if not then living, to her then living issue, or if none, to a named charity. The decedent made no provision in the instrument for his second wife. As a consequence, his daughter became the sole beneficiary of his estate, by virtue of his divorce from his former spouse on October 19, 1979.

On the 8th day of July, 1980, the decedent’s former spouse, as guardian of her infant daughter’s property, filed a petition with the court requesting the probate of the decedent’s last will and testament, and the issuance to her of letters of administration. This application was unsuccessfully opposed by the decedent’s surviving spouse, whose objections to probate were dismissed in the context of a motion for summary judgment made by the guardian ad litem appointed to represent the interests of the infant in the proceeding. As a result thereof, letters of administration were issued by this court to the decedent’s former spouse on November 24, 1980, upon her posting of a bond in the sum of $20,000.00.

New York Probate Lawyers said this is an application for an Order extending the statute of limitations to allow the petitioner to commence an Article 78 proceeding against the State Tax Commission (Commission).

The Audit Division of the Commission, on December 20, 1979, issued a Notice of Determination and Demand for Payment of Sales and Use Taxes Due for the period June 1, 1976 through August 31, 1979. Petitioner filed a petition for revision of that determination and for refund of sales and use taxes under Articles 28 and 29 of the Tax Law. A hearing was held on November 21, 1985 at which petitioner appeared. A Decision was made on May 28, 1986 which modified the Determination, but left an amount due of $83,884.58.

A New York Estate Lawyer said by letter dated May 28, 1986, the Commission notified petitioner of the Decision and advised that petitioner had now exhausted his right of review at the administrative level. Pursuant to section(s) 1138 of the Tax Law, a proceeding in court to review an adverse decision by the State Tax Commission may be instituted only under Article 78 of the Civil Practice Law and Rules, and must be commenced in the Supreme Court of the State of New York, Albany County, within 4 months from the date of this notice.

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A Probate Lawyer said that, this is a proceeding by the executors pursuant to SCPA 1421 to determine the validity and effect of an election by the decedent’s surviving spouse. The decedent executed a will on February 25, 1965 which has been admitted to probate in this court. The decedent was unmarried at the time of execution. He married respondent, his surviving spouse, on October 10, 1967. Subsequent to this marriage decedent made certain Inter vivos dispositions to the surviving spouse. The respondent is the joint and surviving owner of the jointly owned property having a value of $71,444.68.

The issue presented is whether the Inter vivos dispositions to the widow are properly includible in the estate of the decedent for the purpose of computing the widow’s share and are the dispositions for the benefit of the widow to be offset against her share as computed. EPTL 5–1.1(c)(1) provides: ‘Where, after August thirty-first, nineteen hundred sixty-six, a testator executes a will disposing of his entire estate, and is survived by a spouse, a personal right of election is given to the surviving spouse.’ Clause (A) includes the testamentary dispositions enumerated in paragraph (1) of subdivision (b) in the computation of the elective share.

The cases have held that where a will is involved the surviving spouse has a right of election against testamentary substitutes pursuant to EPTL 5–1.1(c) provided: (1) the will was executed after August 31, 1966; (2) the transactions were effected during the marriage; and (3) the transactions were effected after August 31, 1966. All three conditions must be present. Unless present, the Inter vivos transaction is an ‘exempt’ transaction and not a testamentary substitute. There is no right to elect against exempt transactions. In the instant case two of the conditions have been satisfied but the will was executed prior to August 31, 1966.

A Probate Lawyer said in an action for partition of real property, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated December 5, 1983, as, after a nonjury trial, declared that defendant was the owner in fee simple of the subject premises located at 16th Avenue in Brooklyn, New York. Judgment affirmed insofar as appealed from, with costs.

The parties are brother and sister. Upon the death of their father on February 16, 1977, and the admission of his will to probate, plaintiff and defendant and their brother, L, each inherited an undivided one-third interest in three parcels of real property. These consisted of a two-family house on 66th Street in Brooklyn which was plaintiff’s residence; a three-family house on 16th Avenue in Brooklyn where defendant had resided for more than 20 years; and a parcel of land in Shirley, New York.

A New York Estate Lawyer said the father also left money in bank accounts in trust for defendant and for her son, V, and it appears that there was a falling-out between defendant and her brothers when defendant failed to share that money with them. Nevertheless, plaintiff and defendant continued to have conversations concerning the transfer to each other of their interests in the two Brooklyn properties.

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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.