Estate Administration

Published on: July 1, 2015

Court Reverses Order Disqualifying Executrix

by Stephen Bilkis

In a probate proceeding, the petitioner, Mrs. JP, appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated October 16, 2007, as, after a hearing, granted those branches of the motion of the objectant, Mr. EP III, which were to disqualify her from serving as executrix for the estate of a deceased relative and to reinstate letters of administration previously issued to the objectant.

The order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the objectant, Mr. EP III, which was to disqualify the petitioner is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the objectant is denied, and the matter is remitted to the Surrogate’s Court, Kings County, for further proceedings in accordance herewith.

The right of a testator or testatrix to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded, as explained in the case of Matter of Flood ( 236 N.Y. 408, 410, 140 N.E. 936). However, in the case of Matter of Mergenhagen (50 A.D.3d 1486 1488, 856 N.Y.S.2d 389) the Surrogate may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper administration of the estate, and future cooperation is unlikely.

Published on: June 30, 2015

Court Discusses the Power of a Surrogate to Order a Bond

by Stephen Bilkis

The question turns upon the power of the surrogate to require an administrator’s bond in double the value of the personal estate in this state (New York) of Mr. JP, who at the time of his death was a resident of New Jersey, as a condition to the grant of ancillary administration. The personal estate of the decedent at the time of his death consisted of personal effects of the value of about $2,500 in New Jersey, and of stocks and securities of the value of about $40,000, deposited with a safe-deposit company in the city of Brooklyn.

On the 1st day of August, 1889, letters of administration were issued by the probate court of New Jersey to the widow of the decedent upon her petition setting forth that the personal estate of the decedent in that state did not exceed the sum of $2,500. The administratrix, on the granting of the letters, executed her bond with sureties in the penal sum of $5,000 to the surrogate of Monmouth county, N. J., where the decedent resided, conditioned to account for the personal estate of the intestate ‘in the state of New Jersey,’ which has or shall come to her hands. The petitioner did not disclose in her petition the fact that there was any other personal estate of the decedent beyond what was in his actual possession in that state at his decease. On the 1st day of April, 1890, the widow, who with her infant child had become a resident of Brooklyn, applied to the surrogate of Kings county, by petition, for ancillary letters of administration, the petition for the granting of the letters in New Jersey, and that the decedent left personal estate in Kings county of the value of about $40,000, and that one Mr. MP, of Brooklyn, is or claims to be a creditor of the decedent, and that there was no other person claiming to be a creditor known to the petitioner.

The surrogate thereupon issued a citation to creditors of the decedent, and on the hearing Mr. MP presented affidavits to the effect that the decedent was indebted to him in the sum of $7,371.73, with interest; that the decedent, at his death, was the owner of securities to the amount above mentioned, deposited in a safe-deposit company in Brooklyn; that the only security given by the administratrix was the bond of $5,000, and that she had no pecuniary responsibility apart from her interest as widow in the estate of the decedent. The surrogate made an order that ancillary letters be granted to the widow on condition that she should give a bond, with sureties, to be approved by the surrogate, in a penalty of double the value of that part of the personal estate of which the deceased died possessed, which at his death was within the county of Kings.

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 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 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 20, 2015

Court Hears Uncontested Administratrix’s Accounting Proceeding

by Stephen Bilkis

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.

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 18, 2015

Respondents Seek to Compel Co-Executors to Provide Various Documents

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, respondents M and J move to compel the co-executors of the estate, S, the surviving spouse of decedent, and K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. L and; (3) un-redacted photocopies of notes taken by Mr. L during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.

In opposition to respondents’ motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. L represented both decedent and decedent’s surviving spouse, S, in connection with their estate plan, and had confidential communications with decedent and S, jointly and individually, concerning S’s estate plan and assets, and that the contents of those communications concerning S’s estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties. The executors move for a protective order concerning the alleged privileged redactions.

A New York Estate Lawyer said although respondents further argue that the executors’ response to their discovery demands is untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute. The time limitations of CPLR 3122 do not apply where the material sought is claimed to be privileged or where discovery would be palpably improper. The documents sought in this matter are alleged to be privileged, and thus respondents’ reference to CPLR 3122(a) is misplaced and the executors’ motion for a protective order is timely and proper.

Published on: May 17, 2015

Court Decides Power of Appointment in Decedent’s Will

by Stephen Bilkis

A New York Probate Lawyer said that records reflect that the instant proceeding was brought by the petition of a Trust Company as the surviving trustee of the trust created by the will of the decedent for his son for (1) an instruction to the trustees as to the validity of the purported exercise by the will of the son of a testamentary power of appointment pursuant to the testator’s will, (2) a judicial settlement of the accounts of the trustees, and (3) a determination of the commissions payable to the company as surviving trustee.

It appears that the infants who are represented by the guardian ad litem are interested in the instant proceeding by reason of the following circumstances: (a) The testator, who died on December 31, 1939, a resident of New York, and whose will was admitted to probate in this Court on January 15, 1940. (b) The infant wards herein are the three grandchildren of the testator’s son, who died on March 20, 1968, and whose will was admitted to probate on March 26, 1968. The son left him surviving his wife, a natural son, (from whom there has been no issue), and an adopted son, who is the father of the three infants constituting the infants herein. (c) The testator’s son was a beneficiary, as well as a trustee, under a trust created by the will of his father. Pursuant to that trust, the son was entitled to the net income from that portion of the trust corpus which had been set aside for his benefit and, in addition, was entitled to appoint such corpus, ‘in such estates, interests and proportions’ as he ‘shall in and by his last will and testament in that behalf direct, limit and appoint,’ to a class of persons consisting of the testator’s issue and the spouses of such issue. In default of such an exercise of the power of appointment, testator’s will provided that the property subject to the power would be given absolutely to the issue of the child possessing the power or, if the child were not survived by such issue, then absolutely to the testator’s issue then surviving. (d) By his will, which was admitted to probate, the son, purported to exercise the power of appointment given him pursuant to his father’s will.

A New York Estate Lawyer said the threshold consideration in the instant case is the testator’s intention regarding the power of appointment, as reflected in his will, and specifically whether an appointment in further trust is authorized.

Published on: May 16, 2015

Court Interpretes Will Construction Issue

by Stephen Bilkis

A New York Probate Lawyer said from the records, these are two cases involving estate litigation. In the the first probate proceeding, a construction has been requested. The will directs that the residuary estate be given to the testator’s wife, and in the event of a common disaster, to the testator’s daughter. The wife’s death occurred prior to the testator’s but the will contains no provision to cover this contingency. The disposition of the estate is further complicated by the following paragraph of the will: ‘FIFTH: I have not mentioned my son in this Will because he is completely paralyzed and is unable to take care of himself, and after the death of myself and my wife, my daughter has promised to take care of my son, and I know she will keep her promise.’

A New York Estate Lawyer said that the court ruled that, ‘The first rule of testamentary construction, of course, is that a will be interpreted to reflect the actual intention of the testator and the second that this intention be ascertained from a reading of the document as a whole. If a ‘general scheme’ be found, it is the duty of the courts to carry out the testator’s purpose, notwithstanding that ‘general rules of interpretation’ might point to a different result.’

In the Matter of D’Allesandro, the will similarly did not provide for the contingency that ensued. The court stated: ‘There are many instances in which a testamentary disposition, made in a contingency which is provided for but did not occur, is held to apply by necessary implication to a contingency which did occur although not provided for in the will.’