New York City

Published on: July 25, 2016

Domicile of the Decedent at Issue in Will Case

by Stephen Bilkis

The decedent died on the 9th day of January, 1961, while a patient at the Wolcott Clinic, Wolcott, New York. Thereafter and on the 21st day of February, 1961, the son of the decedent, presented to this Court a petition praying that an instrument in writing dated February 5, 1955, and executed by the decedent purporting to be her Last Will and Testament, be admitted to probate by this Court, which petition alleged, that the said decedent at the time of her death was a resident of the Village of Red Creek, Wayne County, New York.

A Kings County Estate Administration Lawyer said, that thereafter and on the 11th day of July, 1961, the respondent, a niece of the decedent, a legatee under the instrument above recited, presented to this Court a petition putting in issue the domicile of the decedent at the time of her death and requesting a Hearing by the Court to determine the question above stated.

The Court also has before it the motion of the proponent questioning the standing of the respondent to raise the issue before the Court. The matters before the Court are jurisdictional. The one going to the right of petitioner to bring said petition; and the other as to whether the domicile of the decedent was within the jurisdiction of this County at the time of her death.

Published on: April 24, 2016

Plaintiff Seeks to Recover Damages for Breach of Contract

by Stephen Bilkis

In an action, inter alia, to recover damages for breach of contract, which was commenced in the Supreme Court, New York County, transferred to the Surrogate’s Court, Kings County, and joined with a probate proceeding the defendants appeal, as limited by their brief, from so much of a decree of the Surrogate’s Court, Kings County, dated November 29, 2011, as awarded the plaintiff interest at the rate of 18% per annum upon each installment payment due and owing to the plaintiff individually and in his capacity as preliminary executor of the estate of the decedent, payable by the defendant from the date each payment became due, and the plaintiff cross-appeals, as limited by his brief, from so much of the same decree as is in favor of him individually and against the defendant in the principal sum of only $480,000 and is in favor of him in his capacity as preliminary executor of the estate of the decedent and against the defendant in the principal sum of only $480,000.

The plaintiff, individually and in his capacity as the executor of the estate of his mother, commenced this breach of contract action against the defendant to recover monthly installments due and owing both to him personally and to the estate beginning in February 2006, pursuant to a stock purchase agreement executed in September 1996. In exchange for shares of stock in a closely held corporation, defendant agreed to pay the total sum of $1,800,000 in monthly installments over the course of 15 years. The agreement provided for the monthly payment of $5,000 for the first five years, $10,000 for the next five years, and $15,000 for the final five years, with all payments inclusive of interest at the rate of 18% per annum.

A prior determination, this Court modified an order of the Surrogate’s Court so as to grant those branches of the plaintiff’s motion which were for summary judgment on the breach of contract causes of action. The Surrogate’s Court entered a decree upon that determination in favor of the plaintiff and against defendant, both in his individual capacity in the principal sum of $480,000, and in his capacity as the executor of the estate in the principal sum of $480,000, as those amounts equaled the sum totals of the monthly payments due beginning in April 2006. In addition, the Surrogate’s Court awarded the plaintiff prejudgment interest upon each monthly payment from the date it became due at the rate of 18% per annum.

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 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.

Published on: May 5, 2015

Court Looks at Will Construction Issue

by Stephen Bilkis

Probate Lawyers said that according to a Kings County Estate Attorney a Judgment of the Supreme Court, Kings County, dated July 6, 1966, was reversed, with $30 costs and disbursements; plaintiffs’ motion for summary judgment granted; and action remanded to the Special Term for the making and entry of an appropriate judgment declaring rights in accordance with the views set forth herein.

A Kings County Probate Lawyer said one Mrs. M died on December 1, 1934 and her last will and testament was duly admitted to probate. The critical provision of the will, with respect to this action for a declaratory judgment, devised her large plot in Greenwood Cemetery to defendant, the Cemetery corporation, with the direction that her remains and those of her late husband be interred there; and further that ‘until the limitation of interments is reached, the remains of my children and my stepchildren and their respective husbands or wives, and their children and their respective husbands or wives, may be interred in the said lot of land, and that interments in the said lot be restricted to the persons so designated.’

A New York Estate Lawyer said that according to a Kings County Estate Lawyer, the Plaintiffs seek to include in the class entitled to burial all descendants and step-descendants and their respective spouses ‘until the limitation of interments is reached.’ Defendant argues that the will limits the class to first and second generation descendants and step-descendants and their respective spouses.