Suffolk County

Published on: October 12, 2015

Petitioner Brings Action for Proceeding to Establish Lost Will

by Stephen Bilkis

The two case hereunder is about probate proceedings.

The first case is the proceeding to establish a lost will pursuant to Surrogate’s Court Act, § 143. The testimony of the two subscribing witnesses establishes that decedent executed a will on or about February 27, 1948, in full compliance with the provisions of Decedent Estate Law, § 21 and that at that time he was of sound mind and under no restraint.

The attorney-draftsman, who was also one of the subscribing witnesses, testified that the will was turned over to decedent’s son for safekeeping immediately upon its execution. He further testified that he made an exact carbon copy of the original will which he conformed and kept in his files. The said carbon counterpart has been offered for probate by petitioner as decedent’s will.

Published on: October 6, 2015

Widow Appeals Refusal of Court to Admit Will Into Probate

by Stephen Bilkis

In a probate proceeding, the decedent’s widow, appeals from stated portions of a decree of the Surrogate’s Court, Kings County, dated February 13, 1991, which, inter alia, upon refusing to admit a will to probate, impressed a constructive trust upon the entire estate for the benefit of the beneficiaries named in the will, and directed disposition of the decedent’s estate.

The decedent and his wife, the appellant, executed mutual wills that were mirror images of each other. The couple was childless and wanted their assets to be shared equally by their respective relatives. Accordingly, simultaneous with the execution of the wills, they executed a written contract which prohibited either party from revoking or changing the wills in any way, without the written consent of the other, and they further provided that any attempt to do so would be ineffective as against the claims of the legatees of the mirror wills. The wife survived the decedent, whose will is the subject matter of this appeal. His will provide a portion of his estate would be placed in trust with the income therefrom to the appellant for life, and the remainder to their relatives, who were enumerated in the will. The decedent bequeathed the rest of his estate to the appellant outright.

After the decedent’s death, the appellant wife, alleging that she could not find the decedent’s will, applied for and obtained letters of administration. As the sole distributee, she received the entire net estate. The petitioner (hereinafter the proponent), a co-executor and co-trustee under the will, commenced the instant proceeding against her to revoke the letters of administration that were issued to her, and to admit to probate a conformed copy of the decedent’s will or, alternatively, for specific performance of the aforementioned agreement.

Published on: September 19, 2015

Catholic Church Brings Suit to Clarify Will Terms

by Stephen Bilkis

In this miscellaneous proceeding, the petitioner, Catholic Child Care Society of the Diocese of Brooklyn (hereinafter Catholic Child Care Society) seeks to modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of a testamentary trust (hereinafter Dowdall Testamentary Trust) established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL 8-1.1.

The decedent E.M. Dowdall died on April 13, 1968. Her will was admitted to probate in this court on January 16, 1969. Article Fourth of the will sets forth various charitable beneficiaries which include The Carmelite Sisters of the Aged and Infirmed, The Catholic Foreign Missionary Society of America (Maryknoll Fathers), The Nursing Sisters of the Sick Poor, The Monastery of Our Lady of Mt. Carmel, and The Confraternity of the Precious Blood. Each of these organizations receives a specific bequest of $5,000.

Article Fifth of the will for which relief under EPTL 8-1.1 is sought bequeaths the entire residuary estate to a trust for the benefit of Catholic Child Care Society. Article Fifth further provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The Dowdall Testamentary Trust has a remaining principal of approximately $90,000.

Published on: August 1, 2015

Court Discusses Power of Attorney Document

by Stephen Bilkis

The issue on this appeal is (1) whether a power of attorney which conferred limited realty management powers upon JSF was one relating to an interest in a decedent’s estate and was therefore ineffective under EPTL 13-2.3 for failure to record it in the Surrogate’s Court, and (2) whether plaintiff LC Corporation, a corporation dissolved by proclamation of the Secretary of State for nonpayment of franchise taxes in 1978, had capacity to bring this action to enforce obligations arising out of prohibited new business conducted five years after dissolution. We conclude that the power of attorney was not ineffective for failure to record in the Surrogate’s Court, and that the plaintiff lacked the capacity to institute this action.

In this foreclosure action, instituted in September 1983 by service by publication upon the named defendants MM (deceased) and GG, the appellant JSF sought to vacate a default judgment of foreclosure and sale dated February 24, 1984, and an order of possession dated September 18, 1984, and to dismiss the action. His motion was denied without reaching the merits upon the ground that he lacked standing as a tenant to challenge the foreclosure. Further, a power of attorney, authorizing him to act in a limited capacity for a foreign citizen who alleged ownership of the subject premises through intestate succession, was declared void for failure to record it in the Surrogate’s Court.

Appellant JSF was a long-time friend of the deceased defendant MM, and has resided at 1110 Lincoln Place in Brooklyn, the subject premises, since 1978. He is the attorney in fact for FA, a citizen and resident of Haiti, who asserts an ownership interest in the subject premises by operation of law through intestate succession.

Published on: July 18, 2015

Court Hears Motion by Executrix Requesting Surrogate to Fix Estate Tax

by Stephen Bilkis

This is a motion by the executrix requesting the Surrogate to fix the New York estate tax (Tax Law § 249–w).

The papers allege that the executrix made a motion to fix the tax returnable on March 16, 1972. Although the State Tax Commission (Commission) was duly served, no order fixing the tax has, 2 years and 9 months later, been submitted to the Surrogate. The executrix requests the Surrogate to act in his judicial, rather than administrative capacity, and to fix the tax (Tax Law § 249–w).

The Commission has appeared but has made no response, formal or informal, to the relief requested by the taxpayer. For the nature of the Commission’s objections, the Court must rely on the information imparted to it by the moving papers. It is there stated that the taxpayer was informed by the Commission that its decision in this and other cases is awaiting determination of pending appeals on related issues.

Published on: July 15, 2015

Probate Court Discusses Recent Bequests of Stock

by Stephen Bilkis

This is the first New York decision to consider the effect of the recent AT & T divestiture on a bequest of AT & T stock. This is a proceeding brought by GB, co-administratrix c.t.a., for a construction of article “SECOND” of the testatrix’s last will and testament. The testatrix died on September 13, 1985 at the approximate age of 89. The last will and testament of the testatrix, dated February 6, 1982 and a codicil thereto, dated September 27, 1984, were admitted to probate by this court on December 2, 1986. Letters of administration c.t.a. were issued to the petitioner and LP, the respondent.

Under the aforementioned codicil, the testatrix deleted CD as a residuary legatee, she having died, and in her place named LP, the respondent who was a friend of the testatrix. This replacement was the only change made, and in all other respects, the will was approved, ratified and confirmed.

The value of the testatrix’s gross estate is approximately $600,000 comprised primarily of stocks, valued at approximately $350,000.00, a house and property, valued between $175,000 to $225,000, jewelry and miscellaneous items, valued at approximately $9,500.00 and two bank accounts, in the amount of approximately $15,000. The testatrix’s closest relatives are four first cousins, once removed, of which only one receives a bequest under the will.

Published on: July 10, 2015

Probate Court Rules on Property Dispute

by Stephen Bilkis

This is an application by the Public Administrator of the County of Kings for a construction of testatrix’ will and other relief.

The testatrix died on December 27, 1919 leaving a will dated February 11, 1905 which was duly admitted to probate in this Court on June 18, 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, testatrix devised all her property, real and personal, to her friend, Mr. BNFCRY, who was also named sole executrix with the further proviso as follows: ‘after BNFCRY Death the Balance what is left go to my Brothers or their heirs (naming them) To be Equally divided Between my Brothers or heirs of my Brothers’ (italics, capitalization and spelling as in original).

It appears that upon testatrix’s death Mr. BNFCRY took possession of real and personal property of testatrix and by conveyances, transfers, assignments, sales, and alienations, by said BNFCRY, individually and as executrix, the assets of the estate were disposed of among the several persons named in the petition herein. The question posed is whether by testatrix’ will BNFCRY took a fee or a life estate with or without power of alienation or disposition.

Published on: July 7, 2015

Legatee Petitions to Compel Payment of a Legacy

by Stephen Bilkis

In a probate proceeding in which legatee Mr. E, petitioned to compel the payment of a legacy, nonparty Mr. LB appeals, by permission, from so much of an order of the Surrogate’s Court, dated December 4, 2008, as disqualified his law firm, SR, P.C., and all members and associates of that firm, from appearing as the petitioner’s attorney.

The facts are stated as follows:

The appellant, LB, was employed for many years as chief court attorney of the law department of the Surrogate’s Court, Kings County (hereinafter the Law Department). In February 2008, shortly after retiring from government service, LB joined SR, P.C. (hereinafter the Firm), a small law firm specializing in estate practice. Prior to LB’s association, the Firm was composed of only two other attorneys, Atty. SR himself and Atty. NA. In late November or early December 2006, before LB left his employment as chief court attorney, the Firm was retained to represent the petitioner in this Surrogate’s Court proceeding.

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.’

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.”