Manhattan

Published on: April 29, 2016

Petitioners File Construction Proceeding to Determine Effect of Tax Exoneration Clause

by Stephen Bilkis

The executors have instituted this construction proceeding, prior to the filing of Federal and New York estate tax returns, to determine the effect of a tax exoneration clause, paragraph second and request a reformation or interpretation of paragraph eleventh, which creates a pre1969 residuary, multiple, split-income, charitable remainder trust so as to qualify it for a charitable deduction under U.S.Code, tit. 26, § 2055 as amended by the Tax Reform Act of 1969 (TRA).

The testator died on September 9, 1973, age 92, leaving a daughter, age 64, as his sole distributee, and a granddaughter and three great-grandsons. His will, executed on December 19, 1967 was admitted to probate and letters testamentary issued to petitioners on October 1, 1973. Paragraph second of the will provides: ‘I direct that all my funeral, administration expenses, just debts, and all estate and inheritance or succession taxes (without apportionment) be paid as soon after my death as may be practicable.’

The residuary probate estate, after deducting the pre-residuary outright and in trust bequests, but before estate taxes, is $845,580. Petitioners allege that the loss of the charitable deduction because the trust is not a charitable annuity trust under TRA would increase the estate tax by $163,000. It should be noted that prior to December 31, 1969, the estate would be entitled to a charitable deduction since the amounts payable to the charities could be readily determined. Before proceeding with the construction of paragraphs second and eleventh of the will, the court is called upon to determine a question of jurisdiction, which appears to be of first impression.

Published on: April 23, 2016

Plaintiff Brings Case to Determine Disposition of Real Property

by Stephen Bilkis

In a probate proceeding in which an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, for ejectment, and for injunctive relief was transferred from the Supreme Court, Kings County, to the Surrogate’s Court, Kings County, the defendants appeal, as limited by their brief, from so much of an interlocutory judgment of the Surrogate’s Court, Kings County, dated January 28, 2010, as, after a nonjury trial, and upon a decision of the same court dated May 19, 2009, determining that a certain deed dated June 6, 2002, is null and void and dismissing their first affirmative defense, and upon a decision of the same court dated October 13, 2009, determining that a certain deed dated May 9, 2001, was not procured through the exercise of undue influence and dismissing their third affirmative defense, is in favor of the plaintiff and against them determining that the plaintiff holds in fee simple absolute certain real property as described in the deed dated May 9, 2001.

“In reviewing findings made following a nonjury trial, this Court may render the judgment it finds warranted by the facts, taking account in a close case the fact that the trial judge had the advantage of seeing the witnesses”. In this case, the testimony established that the deed dated June 6, 2002, was not “entitled to be recorded” until it was resubmitted with the appropriate fees attached. Accordingly, upon our review of the record, we find no error in the determination of the Surrogate that since the deed dated June 6, 2002, was not recorded, it was not delivered to the defendants prior to the decedent’s death.

The court said we decline to disturb the Surrogate’s determination that the deed dated May 9, 2001, was not procured by undue influence. The defendants failed to submit evidence supporting their contention that a confidential relationship existed between the plaintiff and her parents, who executed the deed, or that the deed dated May 9, 2001, was procured by the exercise of undue influence.

Published on: April 15, 2016

Court Decides Validity of Claim for Public Assistance against Estate

by Stephen Bilkis

This was a proceeding brought by BS, the executor of the estate of her father, LS, before the Surrogate’s Court of the City of New York, Nassau County, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to ZS, LS’s wife, from 10 June 1996 to 3 October 2002, while LS was still alive.

LS and ZS had two children, BS and MS, who is mentally retarded.

Published on: March 25, 2016

Court Discusses Case Where Second Wife Left Out of Will

by Stephen Bilkis

This was a proceeding brought before the Surrogate’s Court, Suffolk County, for the accounting of AFS, as administrator c.t.a. of the estate of WPS. A stipulation was submitted to the court for its approval and incorporation into the provisions of an intermediate accounting decree. Jurisdiction has been obtained over the necessary parties to the proceeding, and no one appeared in opposition to the relief requested by the petitioner.

On 17 March 1980, the decedent died testate, and was survived by his spouse and an infant daughter, born of the marriage between himself and his former wife, who also survived him.

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 10, 2016

Petitioner Brings Photocopy of Last Will and Testament to Hearing

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 her son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the decedent’s 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 decedent’s death in April 2005, when she attempted to place the house on the market for sale.

A Kings Estate Administration Lawyer said that, a waiver and consent has been filed by the executor of the estate of the estranged spouse, 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.

The issue in this case is whether this is an uncontested proceeding to probate a copy of the last will and testament of the decedent should prosper.

Published on: July 4, 2015

Petitioner Files for Hearing on Final Trust Accounting

by Stephen Bilkis

This proceeding for settlement of a final trust accounting presents a question of construction occasioned by the bankruptcy of a charitable remainderman designated by the donee of a power of appointment.

The donor of the power, Mr. AK, died March 3, 1931 leaving a 1927 will which was probated in this court. His will provided that the net estate be divided into three portions and placed in trust, each part to furnish income to one of his three children. Upon the death of each child, the remainder interest in his or her trust was to be distributed by valid and absolute disposition by will of such child and in default of such exercise of the power, as a part of the estate of such child in accordance with the statutes of descent and distribution of the State of New York.

One of the children thus benefited was Dr. K. His will, which was duly admitted to probate in New York County following his death on March 2, 1940, directed that the trust fund established for him under his father’s will be placed in further trust to pay income to his wife, BK, and that upon her death, the corpus be equally divided between his niece, CV, “to her own sole use, benefit or be hoof, forever” and XYZ Hospital, or its successor or successors, “to its sole use, benefit and be hoof, absolutely and forever.”

Published on: May 23, 2015

Court Decides Validity of a Hospital Lien

by Stephen Bilkis

In an action, Inter alia, to determine the validity and extent of a hospital lien filed by defendant New York City Health and Hospitals Corporation, plaintiff appeals from an order of the Supreme Court which (1) denied her motion to strike defendant Associated 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’s deceased (Mr. PB) was admitted to Kings County Hospital on May 6, 1968, and remained there as a patient until May 16, 1969, except for the brief period between April 11, 1969 and May 5, 1969 during which he was permitted to return home. The cost of his care at the hospital totaled $33,662.28, and a lien for that amount was duly filed by the Health and Hospitals Corporation on October 5, 1971 against the proceeds of a malpractice action which he had theretofore commenced against a Dr. LA. Subsequent to the filing of the lien, Mr. PB expired and his will designating the plaintiff as his executrix was admitted to probate on April 12, 1972.

It is undisputed that at the time of the hospitalization in question, Mr. PB was covered by Two group policies issued by defendant Associated Hospital Services of New York (AHS), each of which contained a contractual period of limitation for the commencement of actions arising thereunder. One, a policy provided: “No action at law or in equity shall be brought against AHS for any claim for Hospital Service unless brought within two years from the date of the Subscriber’s admission to the hospital.” The other, a policy issued to the Joint Board Fur, Leather and Machine Workers’ Unions for their employees, provided: “No action at law or in equity shall be brought to recover on this Contract unless brought within three years from the Subscriber’s discharge from the hospital.”

Published on: May 19, 2015

Court Reviews Action Brought by Executor for Fathers Estate

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding brought by B, the executor of the estate of her father, LS, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to ZS, LS’s wife, from June 10, 1996 to October 3, 2002, while LS was still alive.

LS and ZS had two children, B and MS, who is mentally retarded. On August 11, 1972, LS was shot four times in what B described as a “bungled mob” assassination attempt. According to newspaper articles, the gunman mistook LS and three others for the mobsters he intended to kill. LS suffered serious injuries that left him unable to work for the remainder of his life. He began receiving Social Security disability benefits in January 1976 and, according to B, also received a Worker’s Compensation award.

A New York Estate Lawyer said that ZS was diagnosed with Alzheimer’s disease in 1992. On December 22, 1995, LS, as attorney-in-fact for ZS, executed an “Assignment to Petition the Court for Support Pursuant to 18 NYCRR 360-3.2.” It states that, in consideration of the medical assistance and care provided and to be provided to ZS by the New York State and Nassau County Departments of Social Services, ZS assigned to the Nassau County Department of Social Services (DSS) “so much of her right, title and interest to petition the court for support from my legally responsible spouse.” LS, as ZS’s spouse, executed a “Declaration of the Legally Responsible Relative” on January 4, 1996. It states, “I, LS Schneider, declare that I refuse to make my income and/or resources available for the cost of necessary medical care and services for the Medicaid applicant/recipient listed above.”

Published on: May 7, 2015

Parties Seek a Judgment as a Matter of Law

by Stephen Bilkis

A New York Probate Lawyer said that records reflect that in a contested probate proceeding, the objectants appeal from a decree of the Surrogate’s Court, which, after reserving decision on the proponent’s motion pursuant to CPLR 4404 for judgment as a matter of law, made at the close of the evidence, and after the trial ended in a hung jury, upon the granting of the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate.

After the parties rested at trial, the proponent moved pursuant to CPLR 4404 for judgment as a matter of law. The Surrogate’s Court reserved decision on the motion and submitted the issue to the jury. After the trial ended in a hung jury, the Surrogate’s Court, upon granting the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate. Contrary to the objectants’ contention, the Surrogate’s Court properly entertained the motion after the trial ended in a hung jury.

A New York Estate Lawyer said that moreover, the Surrogate’s Court properly granted the proponent’s motion. Although the objectants alleged that the will was forged and not duly executed, they failed to adduce sufficient evidence, as a matter of law, to support their objections. Where, as here, the attorney-draftsperson supervised the will’s execution, there was a presumption of regularity that the will was properly executed in all respects. In addition, the self-executing affidavit of the attesting witnesses created “a presumption that the will was duly executed” and also constituted “prima facie evidence of the facts therein attested to by the witnesses”. The objectants failed to overcome this presumption, as a matter of law, because they relied upon either the failure of the attesting witnesses to recall the circumstances of the will’s execution or a highly selected reading of their prior deposition testimony which was controverted by the rest of the witnesses’ testimony. Furthermore, the testimony of the objectants’ expert did not, as a matter of law, establish that the will was forged. The objectants’ remaining contentions are without merit.