Long Island

Published on: October 19, 2012

Court Made Error in Staying Judgment Sale

by Stephen Bilkis

This case is being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York. The appellant in the case is The Oysterman’s Bank & Trust Company. Fred A. Weeks, etc. is the defendant in the case and Alice Call is the respondent.

Case Background

A New York Probate Lawyer said a judgment was entered in the favor of the appellant against the defendant in the Supreme Court of Nassau County on the first of August, 1968. On the 13th of December, 1968 an execution on the judgment was issued to the Sherriff of Suffolk County against the interest of the defendant in certain real property. The amount of $632.09 was due in order to satisfy the judgment. The property in question was owned by the defendant as a tenant in common with the respondent.

Published on: October 11, 2012

Court Discusses Cy Pres Doctrine

by Stephen Bilkis

The Facts of the Case:

On 15 June 2004, the decedent died testate at the age of 74 years of old, without a spouse or issue. The decedent’s last will and testament dated 21 November 1996 was admitted to probate, a will contest proceeding, by decree dated 29 September 2005. The will named a certain person as the nominated executor (for purposes of estate administration) who predeceased the decedent. Thus, letters testamentary issued to the nominated substitute executor, on 30 September 2005. The attorney who prepared the will filed a disclosure statement executed by the decedent on 21 November 1996, which complied with the statutory requirements as it then existed; filed with the court his affidavit that was sworn to on 6 October 2004 and his affidavit sworn to on 30 October 2004.

Thereafter, the attorney has filed his account as executor for the period from 15 April 2005 to 31 January 2009. The account shows total charges of $951,949.88, total credits of $534,915.54 and a balance on hand of $417,034.34. The petitioner is seeking a decree judicially settling the account, approving legal fees, accounting fees and commissions, relief under the doctrine of cy pres as to two charities named in the will that are no longer in existence and approval to deposit the remaining assets on hand with the New York State Comptroller on behalf of any unknown distributees of the decedent. The Attorney General of New York appeared and filed objections to certain legal fees requested by the petitioner’s firm and to the amount of the executor’s commissions as calculated. A New York Probate Lawyer said the Attorney General supports the petitioner’s requests that the balance of the residuary estate be deposited with the New York State Comptroller and that the court direct that the bequests to the two charities no longer in existence be distributed to charities with substantially similar purposes.

Published on: October 10, 2012

Court Discusses Domestic Relations Law and Family Court Act

by Stephen Bilkis

The Facts of the Case:

The estate of decedent-one is the legal entity controlling the assets and obligations of decedent-two. No Last Will and Testament of decedent-two has ever been presented for probate nor read by plaintiffs, if one exists.

Meanwhile, decedent-two was married with wife-one and they had two children, child-one and child-two. Their decree of divorce was issued on 6 January 1997. Together they entered into a Stipulation of Settlement dated 19 September 1996 which was incorporated but not merged into the Judgment of Divorce. On or about 11 March 2000, decedent-two married the defendant, wife-two. Thereafter, a New York Probate Lawyer said child-two resided with decedent-one and wife-two in Suffolk County until the decedent’s death on 20 December 2008. Allegedly, sometime in August 2007, child-one was forced out of the residence by wife-two; that at the time of decedent-two’s death, he was suffering from lung cancer, metastatic stage four; and that wife-two administered him a lethal overdose of morphine which hastened his death.

Published on: October 9, 2012

Plaintiff Brings Will Contest Action

by Stephen Bilkis

This case deals with the plaintiffs Henry Rogers Benjamin Jr. individually and as the trustee of the trusts under article 13 of the will of Henry Rogers Benjamin, William E. Benjamin II, and William E. Benjamin III, Anne R. and Henry Rogers Barry, Douglas Benjamin, Gregory Benjamin, Theodore Benjamin, Christopher M. Benjamin, Alexandra Benjamin Vose, Beatrice Benjamin, Cynthia Barry Bidwell, and Anne E. Green. The defendants in this case are Morgan Guaranty Trust Company of New York and Morgan Guarantee Trust Company as the trustee of trusts under paragraphs a and b of article 13 of the will of Henry Rogers Benjamin and the Southampton Hospital Association and Memorial Hospital for Cancer and Allied Diseases.

Case Background

A New York Probate Lawyer said the decedent passed away on the 22nd of February, 1967. He left a will that was admitted for probate on the 13th of March, 1967. In the 13th article of his will the decedent devised and bequeathed half of his residuary estate in trust with the net income payable to his spouse during her lifetime. The trustees were given the discretionary power to invade the marital trust for the benefit of his spouse. He offered guidance to the trustees in the form of directing that his spouse receive a minimum of $1,000,000 per year utilizing the net income augmented by the principal. The spouse was given general power of appointment over the marital trust. If the spouse was to default on her power or exercise the power invalidly, the remaining principal of the marital trust would go to the decedent’s descendants, who are the plaintiffs in this case.

Published on: October 6, 2012

Petitioner Claims Will was Not Properly Executed

by Stephen Bilkis

This is a case being heard in the Surrogate’s Court of the State of New York located in Nassau County. The case deals with the last will and testament of Zelda Astor. The will is being contested by objectant Regina Astor Zyats who moves for an order of summary judgment and denying the admission of the purported will that is dated the 17th of June, 2005 to probate on the ground that there is lack of due execution of the will. Ms. Zyats also seeks to have the letters testamentary that were issued to Paula Sue Astor – Ferraro revoked. The petitioner, Ms. Ferraro, opposes the motion.

Case Background

The decedent, Zelda Astor, passed away in July of 2005. She left a will that is dated the 17th of June, 2005. The decedent is survived by four children, Jeffrey Howard Astor, Stephen Brent Astor, Regina Astor Zyats, and Paula Sue Astor – Ferraro. In the purported will the decedent makes bequests of case in the amount of $5000 to Regina, $10,000 to Jeffrey, $25,000 to Stephen, $25,000 to her grandson Baron Zyats, $5000 to her granddaughter Rachel Zyats, and $5000 to her former daughter in law, Pamela Astor. A New York Probate Lawyer said the will nominates Paula as the executor of the will. Additionally, in the eighth article of the will the decedent bequeaths her entire residuary estate to Paula.

Published on: October 3, 2012

Plaintiff Seeks to Set Aside Property Transfer

by Stephen Bilkis

This case is being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York. The appellant in the case is John Oggioni. The respondents in the case are Ellen Oggioni, et al. The plaintiff is appealing an order to set aside a deed on the ground of fraud. The original order was made by the Suffolk County Supreme Court and was dated the 9th of January, 2006. The order granted a cross motion made by the defendant that dismissed the complaint as time barred and denied the plaintiff’s motion for a joining trial of this action with another proceeding of an entitled probate proceeding of the will of Frank Oggioni pending the decision made in the Surrogate Court of Suffolk County.

Case Background

At some time in 1995, the plaintiff and his father, Frank Oggioni, became estranged. On the 30th of December, 1996, the father executed a will that left his property, both real and personal and mixed to his daughters, the defendants Ellen and Florence Oggioni in equal shares. There was not testamentary disposition made to the plaintiff.

Published on: September 29, 2012

Court Interpretes Last Will and Testament

by Stephen Bilkis

This is an application made by Julia E. Paige to obtain a construction of the last will and testament of Fred Edey, who is deceased, as a way to determine the proper rates of commissions that are to be paid to the testamentary trustee under the will. This matter is being heard in the Surrogate’s Court of Suffolk County.

Case History

The Surrogate’s Court of Suffolk County in 1929, appointed Old Colony Trust Company from Boston, Massachusetts as the testamentary trustee of the estate of Fred Edey. Old Colony Trust Company has been acting as trustee since this time. From the years 1929 through 1954 the compensation rates as the trustee were calculated in accordance with the statutory rates of New York. Since 1954, the rates have been calculated using their own schedule of charges, which is some what higher than the New York statutory rates. Massachusetts law does not provide specific statutory rates.

Published on: September 27, 2012

Plaintiff Requests an Accounting

by Stephen Bilkis

This case involves Richard P. Booth as the administrator for the Estate of Donald W. Booth Sr. as the plaintiff. The defendant in the case is the Ameriquest Mortgage Company. The Supreme Court of the State of New York in Suffolk County is hearing the case.

A New York Probate Lawyer said the plaintiff, Richard P. Booth is seeking a judgment to set aside and declare a leasehold mortgage given by the defendant, Ameriquest Mortgage Company to be null and void and to cancel and discharge the mortgage, and to direct the Clerk of Suffolk County to cancel and discharge the record of the mortgage.

Case Background

Published on: August 15, 2012

Court Looks at Restrictive Covenant

by Stephen Bilkis

This action involves a case where the court considered that defendant violated a certain restrictive covenant claimed by plaintiffs to affect the lots or parcels of land within an area located in the Borough of Brooklyn.

In the year 1893, deceased died testate seized of said real property. His will was duly admitted to probate by the Surrogate of the County of Kings. By said will the testator’s real property was devised to his children and his executors were given a power of sale.

On or about April 28, 1899 said executors caused to be filed in the office of the Clerk of the County of Kings a map entitled ‘Map of Property Belonging to the Estate of Deceased.’ By said map, the land within the area was subdivided into building lots. All of the lots within the tract, except those fronting on Flatbush Avenue, were conveyed by deeds containing a restrictive covenant in form as follows:

Published on: August 12, 2012

Court Looks at Intention Underlying Will Documents

by Stephen Bilkis

The Facts:

On 27 December 1919, a testatrix died leaving a will dated 11 February 1905 which was duly admitted to probate on 18 June 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, the said testatrix devised all her property, real and personal, to her friend who was also named as the sole executrix with the further proviso that after her friend dies, the balance or what is left shall go to her brothers or their heirs, naming them; that it shall be equally divided between her brothers or their heirs. However, upon testatrix’ death, her friend took possession of all the real and personal property of the testatrix and made conveyances, transfers, assignments, sales, and alienations, individually and as executrix. The assets of the estate were disposed of among several persons.

Thereafter, the Public Administrator of the County of Kings filed an application for a construction of testatrix’ will and other relief.