Staten Island

Published on: March 19, 2015

Court Interprets Will Provisions

by Stephen Bilkis

Probate Lawyers said this is a proceeding to construe Article Sixth of testator’s will which was admitted to probate on March 9, 1961. By said article testator bequeathed his residuary estate in trust, to invest and reinvest ‘and to pay to my beloved wife so much of the income therefrom as she may require for her proper maintenance and support during her lifetime. It is my purpose and intent that my said beloved wife shall at all times have sufficient income paid to her regularly so that she may properly maintain herself in comfort. Testator then directed his trustees to resort to the principal of the trust should the income be less than $6,000 per year or in the event his said wife shall because of her personal health require hospitalization or medical care so that the $6,000 per annum is not sufficient to support her. Said Article Sixth then concludes as follows:

This provision for the benefit of my said wife is made and intended to be in lieu of any statutory or other rights in my estate conferred upon her by the laws of the State of New York. In the event that my said beloved wife shall be dissatisfied with the provision made for her hereunder and seek to contest this will, or refuse to accept the provision made hereunder under her statutory rights, in such event she shall be entitled to her statutory share of my estate and to no more, which statutory share of my estate is to be received by her in lieu of the provision made hereunder.

A New York Estate Lawyer said on May 12, 1966 testator’s wife served a notice upon the executors herein wherein she states among other things that she is dissatisfied with the provisions made for me therein (in Article Sixth) and refuse to accept same, and demand that I be paid in lieu thereof an amount equal to a statutory share, in an amount equal to one-third of the net estate together with such amount and property to which I am entitled under section 200 of the Surrogate’s Court Act.

Published on: March 10, 2015

Parties Seek Leave to File Amended Objections in Probate Case

by Stephen Bilkis

In this contested accounting proceeding several applications seeking pre-trial relief have been submitted. Specifically said applications are as follows:

A. Application by objectants, by orders to show cause, inter alia, to amend objections and to join additional parties; and B. Application to cancel notices of pendency pursuant to Article 65 of the CPLR.

A New York Probate Lawyer said the decedent died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters testamentary issued thereunder to decedent’s spouse, the nominated executrix. Decedent’s will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a “trust fund” until they each attained the age of 23 years. Decedent’s daughters attained the age of 23 years in 1959 and 1961, respectively.

Published on: March 5, 2015

Probate Court Interprets Testator’s Will

by Stephen Bilkis

Probate Lawyers said this is a proceeding to construe Article Sixth of testator’s will which was admitted to probate on March 9, 1961. By said article testator bequeathed his residuary estate in trust, to invest and reinvest ‘and to pay to my beloved wife so much of the income therefrom as she may require for her proper maintenance and support during her lifetime. It is my purpose and intent that my said beloved wife shall at all times have sufficient income paid to her regularly so that she may properly maintain herself in comfort. Testator then directed his trustees to resort to the principal of the trust should the income be less than $6,000 per year or in the event his said wife shall because of her personal health require hospitalization or medical care so that the $6,000 per annum is not sufficient to support her. Said Article Sixth then concludes as follows:

This provision for the benefit of my said wife is made and intended to be in lieu of any statutory or other rights in my estate conferred upon her by the laws of the State of New York. In the event that my said beloved wife shall be dissatisfied with the provision made for her hereunder and seek to contest this will, or refuse to accept the provision made hereunder under her statutory rights, in such event she shall be entitled to her statutory share of my estate and to no more, which statutory share of my estate is to be received by her in lieu of the provision made hereunder.

On May 12, 1966 testator’s wife served a notice upon the executors herein wherein she states among other things that she is dissatisfied with the provisions made for me therein (in Article Sixth) and refuse to accept same, and demand that I be paid in lieu thereof an amount equal to a statutory share, in an amount equal to one-third of the net estate together with such amount and property to which I am entitled under section 200 of the Surrogate’s Court Act.

Published on: March 4, 2015

Court Discusses Order for Temporary Suport

by Stephen Bilkis

Probate Lawyers said the issue before this court appears to be one of first impression. The question presented is does an order of temporary support cease if the matrimonial action abates? Stated slightly differently, may a pendente lite child support order be enforced after the underlying matrimonial action has abated and, if enforceable, who may enforce it?

In this application, a non-party, the non-parent legal guardian of one of the children of the parties, seeks to enforce a temporary order of child support granted to the mother of the child. The temporary child support order was issued as part of a matrimonial action. The mother is now deceased. A factual review of this matter is necessary prior to the court determining the questions presented.

New York Estate Lawyers said in 1987 plaintiff-wife, BF commenced this matrimonial action. By order entered February 6, 1989, defendant-husband, AEF, was ordered to pay plaintiff $200 per week as pendente lite child support for KF (the parties’ only unemancipated child) and $200 per week as pendente lite maintenance. Defendant was at that time a retired employee of the New York City Department of Corrections. In an order, dated November 29, 1989, the court permitted the enforcement of the pendente lite order of child support and maintenance by way of a $400 per week income deduction from defendant’s pension payment. The pension was from the New York City Pension System which was then in pay-out status. Pursuant to the income execution plaintiff started to receive payments from the New York City Pension System equivalent to $400 per week.

Published on: March 2, 2015

Petition Files a Petition to Compel

by Stephen Bilkis

New York Probate Lawyer said that RF died intestate in December, 1947 and letters of administration were issued to his widow, the respondent, in the same month. In September, 1948 respondent filed an income tax return for 1947 on behalf of the decedent. During the return’s audit, respondent executed three assessment waivers, the last of which extended to June, 1954 the time of the appellant, United States of America, for the making of an assessment. In May, 1954 a deficiency assessment for income taxes was made by appellant in the sum of $32,440.09 and, in August, 1954 the District Director of Internal Revenue filed with the respondent a notice of claim for payment of that sum. The respondent neither paid nor rejected appellant’s claim.

In 1962 appellant filed a petition to compel respondent to account. In defense, respondent alleged the six-year limitation period provided in the 1939 Internal Revenue Code. Surrogate Moss, as a matter of law and in the exercise of discretion, denied appellant’s petition.

A New York Estate Lawyer said that the Surrogate conceded that, under former section 211 of the Surrogate’s Court Act, the filing of a notice of claim and its rejection were deemed the commencement of a special proceeding, effectively tolling State statutes of limitation.

Published on: February 23, 2015

Court Decides Action for Partition of Real Property

by Stephen Bilkis

Probate Lawyers said that an action for partition of real property, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated December 5, 1983, as, after a nonjury trial, declared that defendant was the owner in fee simple of the subject premises located at 16th Avenue in Brooklyn, New York. Judgment affirmed insofar as appealed from, with costs.

The parties are brother and sister. Upon the death of their father on February 16, 1977, and the admission of his will to probate, plaintiff and defendant and their brother, L, each inherited an undivided one-third interest in three parcels of real property. These consisted of a two-family house on 66th Street in Brooklyn which was plaintiff’s residence; a three-family house on 16th Avenue in Brooklyn where defendant had resided for more than 20 years; and a parcel of land in Shirley, New York.

A New York Estate Lawyer said that the father also left money in bank accounts in trust for defendant and for her son, V, and it appears that there was a falling-out between defendant and her brothers when defendant failed to share that money with them. Nevertheless, plaintiff and defendant continued to have conversations concerning the transfer to each other of their interests in the two Brooklyn properties.

Published on: February 20, 2015

Court Discusses Validity of Will

by Stephen Bilkis

A Probate Lawyer said that according to sources, both cases involved issues as to the estate. In the first case, as an incident to an account by trustees of the trust for the benefit of testator’s daughter, which terminated by her death, a construction is sought of the validity of the attempted exercise of a power of appointment of the corpus of the trust under the will of testator’s other daughter. By article ‘Second’ testator created a trust of his residuary estate, the income of which was to be paid to his wife during her life. Upon the latter’s death one-third of the corpus of such trust was continued for the life of testator’s daughter, with the income payable to her during her life. On her death the principal was payable to her issue per stirpes, and in default of issue, the principal was payable to another daughter. The will further provided that if the other daughter predeceased her sister, the principal of said trust was payable to such person or persons as said other daughter directed or appointed by her will. If not effectively appointed, distribution was to be made to next of kin of the other daughter in proportions provided under the statute of distribution in effect at her death.

A New York Estate Lawyer said the daughter, the secondary life beneficiary died leaving no issue. Another daughter, predeceased her sister leaving a will which was admitted to probate. Under the third article of the will of the other daughter, her appointive power was exercised by creating further trusts for the benefit of her children, the principal payment to each child being deferred until they attained respective ages of 35, 40, 45 and 50 years. The Court holds that the appointment made under the will of the other daughter is invalid as violating the rule against perpetuities, in effect at the time of its exercise . The trust created thereunder suspended unlawfully the trust created under the testator’s will. The principal of the trust must therefore be distributed equally to said children of the said other daughter living at her death as the alternative beneficiaries under the testator’s will.

A Nassau County Probate Lawyer said that on the second case, Proceedings were brought to contest the probate of an alleged will. The Surrogate’s Court, entered a decree granting in part the proponents’ motion for summary judgment which directed specific performance of an agreement of compromise made in open court and denied contestants’ cross motion to dismiss the petition. The Appellate Division reversed on ground that it was an improvident exercise of discretion to direct testatrix’ daughters to specifically perform agreement of compromise allegedly made and recorded in open court, and an appeal was taken. Motion to dismiss the appeal granted upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the constitution.

Published on: February 20, 2015

Petitioner Bring Motio to Construe Joint and Mutual Will

by Stephen Bilkis

Probate Lawyers said this is a proceeding to construe a joint and mutual will executed by decedent and his wife on March 5, 1956. The wife died on March 31, 1964 and said instrument was probated in this Court as her last will and testament. Shortly thereafter decedent was adjudicated an incompetent. He died on November 27, 1966 and the same instrument was probated as his last will and testament on June 2, 1967. The probate decree reserved the present construction question raised by decedent’s brother for determination upon the accounting or, as now, in an independent proceeding.

A New York Estate Lawyer said the following the customary exordium clauses, the testators by paragraph Second of the will devised and bequeathed ‘all our estates and effects unto the survivor of either of us.’ Paragraph Third provides:

‘In the event that we both die simultaneously or in the same catastrophe, we hereby devise and bequeath all the rest, residue and remainder of our estate and our effects whatsoever and wheresoever the same may be situated, whereof we may be seized or possessed, or to which we may be in any manner entitled, or in which we may be interested at the time of our decease, unto our dear beloved nieces C and G, to share and share alike absolutely and forever.’

Published on: February 12, 2015

Court Rules on Proceeding to Settle Executors Account

by Stephen Bilkis

Sources show that this is a proceeding to settle the executor’s account of a Trust Company. Objections have been filed on behalf of the deceased to the said accounting. The objectant claims title to one-third (1/3) of all property received by the executor as set forth in the account, or, in the alternative objectant seeks to recover the alleged consideration given for the promise to exercise the powers in his favor. The remaining objections are to any charges being made against the property claimed by the objectant.

A Probate Lawyer said the objectant is the only child of the decedent’s marriage to his first wife. At the time of his marriage, and at all times thereafter, decedent was the donee of a testamentary power of appointment in each of two trusts. The first of these powers in a general power of appointment granted to the decedent under the will of his mother. The second is a general power of appointment reserved to the decedent under an inter vivos trust indenture, made by the decedent as grantor. Sometime in 1942 the decedent and his first wife, entered into a separation agreement which provided that in consideration for the wife relinquishing all of her marital rights and claims to the decedent’s property, the decedent would pay to her the sum of $450, plus $100 per month to be used for the support of the objectant until he reached the age of 21 years. The decedent further agreed to maintain irrevocably certain policies of insurance on his life with the objectant as designated beneficiary. No evidence was offered at the hearing in respect to the existence of any such life insurance. The only payment made by the decedent under the 1942 agreement was the sum of $250, paid to the wife at the time of the execution of the agreement. None of the monthly payments was made.

A New York Estate Lawyer said he decedent and the wife were divorced pursuant to a decree of the Circuit Court, Florida. Both the decedent and the wife remarried. A judgment was obtained against the decedent in the sum of $1,567.90 for unpaid monthly installments due under the 1942 agreement. Thereafter, the decedent, wife, and their respective spouses entered into an agreement in order to ‘amicably settle and adjust’ these differences. The 1944 agreement provided that the wife’s second husband, would adopt the objectant. The decedent consented to the adoption and agreed to lend all necessary assistance to effect same. The wife agreed to promptly procure a satisfaction of the $1,567.90 judgment previously entered, and the wife and her second husband further agreed to hold the decedent safe and harmless from making any further payments of $100 per month as required by the 1942 agreement. Finally, the decedent agreed to exercise his testamentary powers of appointment irrevocably in such a manner which, in view of subsequent events, would result in the objectant receiving a one-third interest in the principal of the trusts. Simultaneously, with the execution of the 1944 agreement, decedent executed a Will providing for the exercise of the power in objectant’s favor. On that very same day an order of adoption was made providing for the adoption of the objectant by the second husband.

Published on: February 8, 2015

Court Deals with Conflicting Interpretation of a Will

by Stephen Bilkis

Probate Lawyers said before the Court is the petition of Mr. Dm for the construction of Clause Second of the Last Will and Testament of his mother, Mrs. M. The decedent died June 14, 1984 survived by her son, Dm, the petitioner herein, as her sole distributee. Mrs. M’ Will was admitted to probate by this Court on July 12, 1984.

The entire Will is only five paragraphs long and the dispositive provisions are contained within Clause Second in the form of a Residuary Testamentary Trust given to the Trustee:

“To hold, administer, invest and reinvest for the benefit of my son, DM and to collect the income thereof and pay any lawful expenses incidental to the execution of the trust and to pay out to my son the sum of $500.00 each month until such time when the trust fund is depleted of all its assets. However, in the event that said assets reach a minimum of $2,500.00, the Trustee may in his discretion terminate said trust and after payment of any remaining expenses, disburse remaining moneys to my son above mentioned.”