Suffolk County

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: March 29, 2015

Testatrix Intended to Donate Entire Estate to Charity

by Stephen Bilkis

A Probate Lawyer said that, this is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (229 App. Div. 809, 242 N. Y. S. 621), entered May 22, 1930, modifying and affirming as modified a decree of the Kings County Surrogate’s Court admitting to probate the last will and testament of Catherine C. Devine, deceased, so as to provide that costs of the trial be awarded to the contestant, who was named as executor in two other wills, under the provisions of section 278 of the Surrogate’s Court Act.

A Westchester County Probate Lawyer said that, in another case a proceeding was brought to probate and construe will. The fourteenth article of the will gave the residue of the estate of the testatrix to named executrix for any and all charities that she in her uncontrolled discretion might deem it best and fitting. In preceding articles of the will the testatrix made specific bequests to persons and organizations for various religious and charitable purposes. In the fifteenth article she stated that she made no provision in the will for any relative ‘for reasons best known to myself.’ The executrix died on February 26, 1961, and the testatrix died on October 26, 1962.

Suffolk County Probate Lawyers said the Surrogate’s Court, Kings County, construed the fourteenth article and held that will clearly disclosed that sole intention of testatrix was to devote her entire estate to charitable and religious purposes, and that fact that named executrix predeceased testatrix did not affect validity of gifts for benefit of ultimate charitable beneficiaries, and that the discretion reposed in the named executrix was not such an essential part of the testamentary plan that her death would thwart intended charitable purposes of testatrix, and that residuary estate should be equally distributed among beneficiaries designated in other articles of the will.

Published on: March 25, 2015

Executors Seek to Enforce Notice of Election

by Stephen Bilkis

A Probate Lawyer said that, the executors seek a determination as to the validity and effect of the notice of election served and filed by the surviving spouse to take against testator’s will. The will, dated August 1, 1960, was admitted to probate on January 24, 1961. By paragraph ‘THIRD’, testator bequeathed 35% of his estate to his wife with the direction that she ‘devote and contribute one-third’ thereof to certain charities. The will contains no other provision for testator’s wife. The remainder of the estate is to be divided among named legatees in specified percentages.

There were no children born of testator’s marriage, thus the intestate share of the surviving spouse is 50% of the net estate. The bequest provided for the surviving spouse under testator’s will does not meet the minimum requirements of the statutes (Decedent Estate Law, §§ 83, 18). The statutory provisions in favor of a surviving spouse are remedial and are to be liberally construed.

A New York Estate Lawyer said that, in another probate proceeding, co-executor and legatee under the will of the decedent, appeals from so much of an order of the Surrogate’s Court, Kings County, entered January 24, 1964, as granted $1,012.50 to lawyer for counsel fees, said amount to be a lien upon appellant’s share of the decedent’s estate.

Published on: March 22, 2015

Court Discusses Rule of Perpetuities

by Stephen Bilkis

Probate Lawyers said the question presented on this record is whether the trusts created by the will of CMR, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits, and income of the trust-estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder, on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority, and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only; but if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law.

A New York Estate Lawyer said there would be no difficulty in sustaining the limitations in the will, if the period of suspension in this case is reckoned from the death of the testatrix, and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate, and a minority, and substantially the same rule applies to limitations of personal property. By another section of the statute it is declared that the delivery of the grant, where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate. If nothing is to be considered in this case except the terms of the will, and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will; but if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her, as the owner of the property devised and bequeathed, of the jus disponendi, incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust-deed of January 6, 1853, and the provisions of the statute of powers. By section 128 of that statute it is declared that ‘the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed, not from the date of the instrument, but from the time of the creation of the power. Section 129 declares that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person could not be capable of taking under the instrument by which the power was granted; and by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.

Nassau County Probate Lawyers said it is claimed in behalf of the respondents that the will of Mrs. CMR was merely an execution of a power of appointment reserved in the trust-deed of January 6, 1853, made between the testatrix (then CMF) of the first part, and GSR and others of the second part, and that, construing the will in connection with the trust-deed and the provisions of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after the trust-deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz., the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust-deed was made in contemplation of the marriage of the settlor, CMF, with GSR. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts, or incumbrances of her husband, and to secure the principal to her, if she survived her husband; or, in case she should die during coverture, to her appointees by will; or, if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate.

Published on: March 16, 2015

Court Discusses Validity of Bequest to Charity

by Stephen Bilkis

The committee of an incompetent moves for permission to file objections to the account of the Executor of the Last Will and Testament of the incompetent’s mother and for leave to obtain a construction of her will in respect to the validity of certain provisions for charitable bequests which, in his opinion, contravene the provisions of section 17 of the Decedent Estate Law. Said section provides that not more than half of an estate may be bequeathed to charity where the decedent is survived by a child or certain other close relatives.

Probate Lawyers said the incompetent’s mother died on July 11, 1956, leaving a Last Will and Testament which was duly admitted to probate by the Surrogate’s Court of Kings County on December 21, 1956.

By the terms of her will the decedent bequeathed one half of her residuary estate to eight charitable organizations in equal shares. The other half of her estate she bequeathed to a trustee in trust for the incompetent herein with directions to the trustee to pay the income to the Central Islip State Hospital for his care and maintenance and, in its discretion, to invade the principal to the extent of $150 per year. Upon the death of her son the trust was to terminate and the corpus thereof was to be paid to the State of New York in payment of past care and attention.

Published on: March 13, 2015

Accounting Fidicuciary Seeks to Charge Remainder Interest

by Stephen Bilkis

A New York Probate Laywer decedent Mrs. AH died in 1940. Her will admitted to probate, after minor pre-residuary dispositions, created a trust for the income benefit of her daughter M with remainder to M’s children. The trust was funded in 1946 and administered by co-trustees M, the income beneficiary and Mr. R. Mr. R died in 1959. From 1959 to June 1, 1977, the date of her death, the trust was administered by M, the income beneficiary, as sole trustee.

At her death in 1977, the remaindermen of the trust were M’s seven children, one of whom was P. M’s executor has now accounted as a fiduciary of the deceased trustee.

The account reveals that on October 9, 1963, M, as sole trustee, made a loan from the trust to P in the sum of $64,000. P executed a demand promissory note to the trust. As security, P executed an assignment of all his right, title and interest in his remainder interest, then (as now) a one-seventh share of the principal. P made interest payments on the loan from 1963 to 1968. No part of the principal of the loan has been repaid.

Published on: March 8, 2015

Petitioner Seeks Repayment of Trust Principal

by Stephen Bilkis

A Probate Lawyer said the decedent Mrs. AH died in 1940. Her will admitted to probate, after minor pre-residuary dispositions, created a trust for the income benefit of her daughter M with remainder to M’s children. The trust was funded in 1946 and administered by co-trustees M, the income beneficiary and Mr. R. Mr. R died in 1959. From 1959 to June 1, 1977, the date of her death, the trust was administered by M, the income beneficiary, as sole trustee.

At her death in 1977, the remaindermen of the trust were M’s seven children, one of whom was P. M’s executor has now accounted as a fiduciary of the deceased trustee.

The account reveals that on October 9, 1963, M, as sole trustee, made a loan from the trust to P in the sum of $64,000. P executed a demand promissory note to the trust. As security, P executed an assignment of all his right, title and interest in his remainder interest, then (as now) a one-seventh share of the principal. P made interest payments on the loan from 1963 to 1968. No part of the principal of the loan has been repaid.

Published on: March 3, 2015

Court Listens to Motion to Disqualify Lawyers as Executors

by Stephen Bilkis

Probate Lawyers said the widow of the testator has made this motion to disqualify the attorneys for the executors and their counsel, to restrain them from participating in the affairs of the estate and from continuing to appear for the executors in matters affecting the estate, and to require said attorneys and their counsel to restore to the estate all sums of money they have received for legal services or otherwise.

Testator’s will was duly admitted to probate and letters testamentary issued to his three children as the nominated executors therein. By the provisions of his will testator bequeathed $5,000 to his widow and provided other benefits for her, not necessary of enumeration, and bequeathed and devised the residue of his estate, in equal shares to his three children whom he named as executors. The widow filed a notice of election to take her intestate share in the estate as provided by Section 18 Decedent Estate Law, and instituted a proceeding to determine the validity of such election. The matter was settled by agreement wherein the widow was to receive 28 1/2% of the net estate with the balance being distributable to testator’s children in equal shares.

New York Estate Lawyers said thereafter the widow instituted a proceeding to compel the executors to account and on their failure to file the account as directed made a motion to punish from for contempt. The account was filed and objections thereto were filed by the widow and examinations of the executors were allowed with reference to such account. In addition the widow sought to compel the executors to account in the estate of testator’s first wife under the terms of whose will testator was the income beneficiary of a trust of the residuary estate with the remainder of such trust bequeathed and devised to testator’s and his first wife’s three children, the executors of testator’s estate.

Published on: March 1, 2015

Objectants Submit Order to Show Cause and Cancel Notice of Pendency

by Stephen Bilkis

New York Probate Lawyers said 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.

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: February 27, 2015

Petitioner Brings Action for Judicial Settlement of Trustee Account

by Stephen Bilkis

Probate Lawyers said that in this action for a judicial settlement of a trustee’s account and for a construction of the will and codicils of the testator, the trustee moves for summary judgment.

The testator died in September 1918, leaving a will and five codicils which were admitted to probate in January 1919. By his will and codicils, the testator gave his nephew, C, an outright legacy of $500,000 and created fifteen trusts. Eight of the trusts provided that upon the death of the life tenant the corpus of each trust was to be disposed of as part of the residuary estate which was left entirely to charities (hereafter charitable trusts). The remaining seven trusts provided in each instance on the death of the life tenant for the delivery of the remainder of such trust to non-charitable beneficiaries (hereafter non-charitable trusts).

By Article Twenty-Second of his first codicil, the testator provided that the charities to which the residue was lift should not receive any benefit from the estate until all other trusts and legacies were fully paid. The testator’s foresight in making this provision is demonstrated when it was determined shortly after his death that the estate could fulfill the legacies and trusts only to approximately ninety per cent thereof. By a judicial construction of this provision it was determined that as each charitable residuary trust terminated, no payment would be made to the charitable residuary legatees until the then continuing trusts and all previously terminated non-charitable trusts had been funded in full and the legacy to the testator’s nephew had been paid in full.