Nassau

Published on: September 20, 2015

Court Review Instrument Compliance with Decedent Law 21

by Stephen Bilkis

The two cases hereunder is about probate proceedings.In the first case involves a contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

In the first case involves a contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

The Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute.

Published on: August 31, 2015

Court Discusses Outcome of Contested Probate Proceeding

by Stephen Bilkis

In a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated April 11, 1986, as, upon a ruling made after close of all the evidence at a jury trial dismissing all her objections as a matter of law, dismissed her third objection alleging that the will was procured by the undue influence of the petitioner, admitted the will to probate and awarded letters testamentary to the petitioner.

The testimony at the trial established that the decedent MB had executed a will in 1977 which would have distributed her estate equally to her two sisters, who were then living, and the proponent of the will in question, PH, the surviving son of a third sister. In the event either of MB’s two sisters predeceased her, their shares would go to the objectant, LM, the daughter of one of those sisters. In December 1977MB fractured a hip bone and PH came to her aid and assisted her in getting to the hospital. A few days after MB’s accident, PH ended his employment as a tenured college professor and devoted his energies to assisting his aunt in her affairs, primarily acting as her financial advisor.

Specifically, MB executed a power of attorney in favor of PH; MB’s securities were removed from her safe deposit box by PH and he transferred them to a box in his name; MB’s bank accounts were transferred by PH into an account in the joint names of MB and PH, and PH signed MB’s name on the account application at her request; PH arranged for the dividend checks from MB’s securities to be deposited directly into another joint account which was opened in a similar fashion; and the bank statements from the joint accounts were sent to PH’s home although the proxy materials were sent to MB. In addition, PH assisted MB in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.

Published on: July 19, 2015

This Case Involves the Enforcement of a Sister State Divorce Judgement

by Stephen Bilkis

This case involves the enforcement of a sister-state divorce judgment, with respect to arrears in alimony and support payments, pursuant to the Uniform Enforcement of Foreign Judgments Act (article 54 of the CPLR).

In January 1973, the plaintiff-wife commenced an action for divorce in the Superior Court of the State of Connecticut where she was then living and has continued to reside with her two minor children. While the action was pending, the parties executed a separation agreement on April 16, 1973. The agreement provided, Inter alia, for semimonthly payments to the plaintiff for alimony and child support. Thereafter on August 16, 1973, the plaintiff was granted a judgment of absolute divorce by the Connecticut court, specifically incorporating the terms of the separation agreement, the agreement surviving and not merging into the decree.

From the papers it appears that the defendant resided in Manhattan when the separation agreement was executed, and in Brooklyn when the divorce judgment was granted. There is no question of the defendant appearing in and being represented by counsel in the divorce action. Defendant currently lives in Brooklyn and is a practicing veterinarian. Plaintiff alleges that she is a housewife with part-time employment as a teacher in Stamford, Connecticut where her gross annual pay is $3,000.

Published on: July 17, 2015

Courts Discuss Notice of Pendency

by Stephen Bilkis

Upon the foregoing papers, nonparty Geneva Alston, Administrator of the Estate of Mattie Dickens, moves by way of order to show cause for an order 1) cancelling the notice of pendency filed against the subject property on May 19, 2008 by plaintiff Citimortgage, Inc, successor in interest by merger to ABN AMRO Mortgage Group, Inc. and 2) permanently barring as a lien and discharging of record a certain mortgage on the property dated August 22, 2007 given to plaintiff’s predecessor-in-interest by defendant TM, notwithstanding a recorded satisfaction of same dated December 4, 2007.

The owner of the subject property located at 748 Decatur Street in Brooklyn, having taken sole title as tenant by the entirety following the death of her husband, Pearlie Dickens. On February 9, 2006, Mattie Dickens died. The following day, TM executed a deed whereby she purportedly conveyed, as the executor of the Estate of Mattie Dickens, title to the property to herself as grantee. On July 10, 2006, TM executed a mortgage on the property in favor of Fremont Investment & Loan (Fremont) to secure a loan in the amount of $250,000.00. On August 22, 2007, TM executed a mortgage on the property in favor of plaintiff’s predecessor, ABN AMRO Mortgage Group, Inc. to secure a loan in the amount of $340,000.00. According to the settlement statement for the August 22, 2007 mortgage transaction, proceeds totaling $251,237.66 were used to pay off the prior Fremont mortgage. On September 6, 2007, Mortgage Electronic Registration Systems, as nominee for Fremont, issued a satisfaction of the prior $250,000.00 mortgage. The satisfaction of the Fremont mortgage was recorded on September 17, 2007.

On December 4, 2007, plaintiff issued a satisfaction of its $340,000.00 mortgage, apparently in error. The satisfaction of plaintiff’s mortgage was recorded on December 11, 2007. On May 19, 2008, plaintiff filed a notice of pendency on the subject property and commenced the instant action pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL) to vacate the December 4, 2007 satisfaction of mortgage and to restore its mortgage lien to its priority position nunc pro tunc.

Published on: July 5, 2015

Probate Court Called Upon to Interpret Will

by Stephen Bilkis

Mr. LM, a resident of Burlington, Vt., died in August, 1870, leaving a last will dated October 3, 1868, and a codicil thereto executed October 28, 1868, which will and codicil were admitted to probate in the state of Vermont on September 16, 1870, and letters testamentary thereon issued to Mrs. ALM, his widow, who was named as executrix of the will.

The testator left him surviving his widow, ALM, three sons, WM, GM and CM, and one daughter, AM, who were his sole heirs at law and next of kin. GM, one of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; Mrs. ALM, the widow, died September 22, 1904, a little over four years after the death of her son GM, the father of the plaintiff. At the time of the testator’s death his children were under age and unmarried. The testator died seized of certain real estate in the states of New York, New Jersey, and Vermont. The plaintiff brought this action to partition lands in the county of Kings in this state, asserting she had an interest therein for the reason that under the terms of the will the interest of her father, GM, one of the remaindermen, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, GM having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, GM, under the will. The trial justice decided in favor of plaintiff. The judgment entered upon that decision was reversed by the Appellate Division, and the complaint dismissed. Plaintiff and her sisters, defendants, appeal to this court.

The provisions of the will of Mr. LM material to be considered here are as follows:

Published on: May 25, 2015

Court Discusses Jurisdiction of Surrogate Court

by Stephen Bilkis

The petitioner in this custody proceeding is the natural mother of a child born in 1976 in Brooklyn. The respondent is the child’s paternal grandmother, who was appointed by as guardian of the person for the child in December 1977. The petition alleges that in May, 1977 the father took the child from the petitioner and gave it to his mother, and that petitioner was afraid to act because of previous assaults and threats. The petitioner-grandmother in the Surrogate’s Court proceeding (respondent herein) alleged the natural mother had abandoned the child, that she was a drug addict, and that her whereabouts were unknown. The father executed a waiver and consent to the appointment of his mother as guardian. No supporting affidavits as to the circumstances of the mother’s alleged abandonment, her addiction, or her disappearance were submitted; nor was an affidavit of diligent search provided. The letters of guardianship were issued on the ex parte application of the respondent herein, without notice to the mother, and apparently without a hearing.

On July 19, 1978 petitioner-mother filed a petition for custody of her child in the Family Court. The issue before this Court is whether it may assume jurisdiction in a custody proceeding, where guardianship of the person has been awarded in a prior ex parte proceeding in the Surrogate’s Court. The applicable law is to be found in Article 6 of the New York State Constitution, the Family Court and Surrogate’s Court Procedure Acts (hereafter “FCA” and “SPCA”) and pertinent cases.

Unlike the Supreme Court, neither court has general original jurisdiction in law and equity. The powers and jurisdiction of both the Surrogate and the Family Court Judge are limited. Article 6, Section 12 of the NYS Constitution states:

Published on: May 22, 2015

Court Discusses Will Provisions

by Stephen Bilkis

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.

Published on: May 13, 2015

Petitioner Seeking Common Law Indemnification in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that according to sources, in the instant case, the complainant underwent surgery at a Medical Center, and the deceased served as his anesthesiologist. The anesthesiologist died on October 1, 2002 . On October 21, 2002, the anesthesiologist’s father, as executor of his estate, petitioned the Surrogate’s Court, to have the decedent’s will admitted to probate. The petition to admit the will to probate stated that the decedent died while a domiciliary of New York, and that someone was named in the will as successor executor. By decree, the will was admitted to probate, and sometime later, letters testamentary were issued to his father. Thereafter, the father died.

A Staten Island Probate Lawyer said that in 2003 the complainant commenced the main action against, among others, the Medical Center. In 2008, the Medical Center commenced the instant third-party action against the successor executor of anesthesiologist’s estate, seeking common-law indemnification. The successor, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the lawyers entered into a stipulation with the Medical Center, in which, the successor admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist, except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

A New York Estate Admininstration Lawyer said that by notice of motion, the successor-appellant’s newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the appellant’s affidavit stating that she had been designated as Successor Executor of the Estate of the deceased anesthesiologist, but the Estate was closed, and her role was extinguished in 2006. Her attorney also submitted an affirmation acknowledging that She had been personal representative for an Estate which was domiciled and probated in Colorado, but claimed that her appointment terminated in 2007, pursuant to Colorado law which provides that, “if no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates”. No documents were submitted in support of the appellant’s claim that her status as personal representative had terminated. In opposition, the Medical Center noted that “in Colorado to close an estate, assuming there was one in Colorado, you have to file papers. No such papers are annexed to the motion.”

Published on: May 9, 2015

Probate Court Conducts an Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that records show that in the instant case, the decedent died on August 27, 2003 a resident of New York. She was survived by her son and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to the executor for estate administration. The will provides that the residuary estate be divided equally between the two children but that the daughter, if unmarried, be given a two year right to occupy the decedent’s home provided she pay real estate taxes. The daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by him.

The court ruled that, as with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: March 31, 2015

petitioner Seeks Interpretation of Tax Clause in Will

by Stephen Bilkis

The executors have requested construction of several provisions of Mrs. VK’s will admitted to probate in 1969.

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Probate Lawyers said the principal problem concerns the meaning of the tax clause. Since the bulk of the estate consists of stock in a family corporation, construction of the tax clause in turn may require a section 303 Internal Revenue Code stock redemption to meet the tax obligation.