Estate Administration

Published on: May 14, 2015

Proponent of a will claims that objectant does not have legal standing to object – Potenza’s Will, In re, 19 Misc.2d 107 (N.Y. Surr. Ct., 1957)

by Stephen Bilkis

In this case the court must determine whether an objectant to probating a will has standing to do so. Under New York law, only those with an interest in the proceeding have the legal right to file an objection.

The decedent, Potenza, died on August 8, 1956. She was survived by a number of brothers and sisters as well as an alleged surviving husband, Alessandrello. Although the decedent and Alessandrello were married on August 8, 1953, Potenza questioned the validity of the marriage because she believed that the Alessandrello was previously married in Italy and that he never divorced his previous wife. Potenza left a will dated November 9, 1955, in which she left nothing to Alessandrello. She stated the reason for not leaving him anything was because of her belief that his marriage to his first wife was not legally terminated. The will was submitted for probate, and Alessandrello filed an objection. Alessandrello’s objections to the will are based on lack of testamentary capacity, fraud, duress and undue influence. Further, Alessandrello asserts that he has an interest in the estate as the spouse of the deceased.

The proponent of the will filed a motion to dismiss Alessandrello’s objections on the ground that he lacked status to object to the will. According to New York law, in order to object to a will, you must have status or standing to do so. This means that the objectant must have a pecuniary interest in the proceeding. Generally, standing is limited to distributees or beneficiaries. Distributees, also referred to as “heirs at law,” are those who would receive less under the contested will than they would receive if there were no will. Beneficiaries who have standing are beneficiaries under the contested will who would receive less under the contested will than they would under a prior will. If Alessandrello was legally married to Potenza at the time of her death, then he would have status. Otherwise, he would not.

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 10, 2015

Probate Court Interprets Holographic Instrument

by Stephen Bilkis

A New York Probate Lawyer said that sources show that the complainant offers for probate a holographic instrument, 2-1/4 3-3/4 inches in size, written upon both sides thereof. The decedent’s signature appears directly below the dispositive provisions with no space for any other signatures below it. The first witness’s signature is on the right-hand side of the paper parallel to the edge thereof approximately at a right angle to the decedent’s signature and followed by the word ‘witness’; the other witness’s signature appears immediately thereafter at a right angle to the first witness’s signature on the side of the paper opposite decedent’s signature. This witness’s signature is inverted in relation to decedent’s signature and preceded by the word ‘witness.’

The question submitted before the court is whether the witnesses signed ‘at the end’ of the propounded instrument is in accordance with the requirements of section 21(4) of the Decedent Estate Law.

A New York Estate Lawyer said that the Court ruled that, Section 21 of the Decedent Estate Law was designed to prevent fraud and its beneficial purpose should not be thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for a fraud to have been perpetrated. As stated in the Field case, ‘Form should not be raised above substance, in order to destroy a will, and the substantial thing in this case is a paper which reads straightforward and without interruption from the beginning to the end, and when thus read the signature is found at the end.’

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: May 8, 2015

Courts Review Abiguity in Will Clause

by Stephen Bilkis

A New York Probate Lawyer said that according to sources, this will contest action, involving the construction of a latent ambiguity in a will clause, foregrounds the difficulty of determining close cases in the absence of a clearly enunciated burden of proof. An earlier decision denied summary judgment on an objection in this estate accounting challenging “the Executor’s claim that a rare book collection worth more than $5 million at the time of decedent’s death was included in the specific bequest of tangibles,” finding a latent ambiguity requiring consideration of extrinsic evidence and directing a hearing on the issue. Familiarity with the facts set forth in that opinion is assumed, but a few need be repeated in order to place the resulting hearing, and testimony adduced there, in context.

The decedent, died leaving an estate of approximately $17 million. His two-page will, admitted to probate on September 5, 2007, named his wife as his executor. In Article SECOND, it made a specific bequest of tangibles to his wife, and in Article THIRD, it bequeathed the residuary, two-thirds to his wife and one-third to his son. In her capacity as executor, the wife signed and filed an estate tax return that specifically designated a “rare book collection” valued at $5.2 million, which she has deemed included in the specific bequest to her. Whether the Collection was or was not included in the specific bequest is the issue raised by the son, as objectant to the wife’s intermediate accounting.

A New York Estate Lawyer said that witnesses testified at the hearing. The Decedent was a passionate collector of pre–1800 materials relating to festivals, or “fêtes,” and had been engaged in assembling the Collection for many years, beginning before his marriage. The Collection consisted of books; prints, manuscripts, pamphlets, scrolls and broadsides. Most of the Collection was maintained in decedent’s apartment, the books in a glass-fronted bookcase prominently featured in the living room, with other items in storage boxes specially constructed to avoid damage from light and dust. Some twenty-one larger items were kept in a safe deposit box at a nearby bank. The wife, a collector in her own right, assisted him in assembling the Collection, and whenever pieces from the Collection were lent to museums, their provenance was described as that of “Mr. and Mrs.”

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 6, 2015

Court Interprets the Provisions of a Trust

by Stephen Bilkis

New York Probate Lawyers this is an uncontested proceeding for reformation of Article FIFTH of decedent’s last will and testament dated November 21, 1979, as amended by Article II of a codicil thereto dated March 24, 1982 (collectively, the “will”). Decedent died on December 12, 1984. The will was admitted to probate by decree of this court.

A Kings Probate lawyer said that Petitioner, the sister of the decedent, is a co-trustee of the trust created under Article FIFTH of the will (the “Trust”) for the benefit of decedent’s son, who suffers from chronic physical disabilities, including malfunctioning kidneys, for which he is receiving dialysis treatment. On July 14, 2006, following the death of the decedent, who had been serving as co-trustee with petitioner, successor letters of trusteeship were issued by this court to Bonnie Linzer, who is petitioner’s daughter as well as a remainderman of the trust.

A New York Estate Lawyer said that under Article III of the codicil, a trustee who is also a beneficiary of the trust is prohibited from (1) exercising discretion to pay or not to pay income or principal from the trust; (2) determining whether a beneficiary of the trust is disabled; (3) terminating any trust or life estate thereunder; and (4) exercising discretion to allocate receipts or expenses between principal and income. Petitioner and the daughter, who are remaindermen of the trust as well as the co-trustees, are thus unable to act in respect to these decisions.

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.

Published on: May 4, 2015

Petitioner Files an Appeal in Will Contest Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that, this is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (207 App. Div. 388,202 N. Y. Supp. 201), entered December 7, 1923, which affirmed a decree of the Kings County Surrogate’s Court admitting to probate a paper propounded as the last will and testament of the deceased.

A Kings Estate Litigation Lawyer said that, another case is a motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (202 App. Div. 843,194 N. Y. Supp. 978), entered July 21, 1922, which unanimously affirmed a decree of the Kings County Surrogate’s Court admitting to probate a paper propounded as the last will and testament of the deceased deceased. The motion was made upon the ground that permission to appeal had not been obtained.

The only question was as to whether the will was duly executed, one of the witnesses testifying that there was no publication thereof.

Published on: May 3, 2015

Petitioner Files an Application for an Order Extending the Statute of Limitations

by Stephen Bilkis

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.