Probate & Estate Litigation

Published on: September 3, 2017

Carbon copy of a will submitted for probate – Levinsohn’s Estate, In re, 160 N.Y.S.2d 479 (N.Y. Surr. Ct., 1957)

by Stephen Bilkis

In this case the Surrogate’s Court had to determine whether to probate a carbon copy of a will where the original was purported inadvertently lost or destroyed.

According to the two witnesses, the decedent, L. Levinsohn, executed a will on or about February 27, 1948. They testified that all legal requirements were met. In addition, they testified that at the time Levinsohn executed the will, the decedent was of sound mind and memory and that he was not under duress.

One of the two witnesses was an attorney and was also the person who drafted the will. He testified that immediately after the will was executed, he gave it to the decedent’s son for safekeeping. This witness also testified that he made a carbon copy of the original will which he conformed and kept in his files. The witness submitted the carbon copy for probate.

Published on: September 2, 2017

Court decides whether language in a will is mandatory or precatory – Moore’s Will, In re, 227 N.Y.S.2d 702 (N.Y. Surr. Ct., 1962)

by Stephen Bilkis

In this case the Surrogate’s Court considered whether certain language in a will is a mandatory condition of a beneficiary’s receiving a bequest or is merely precatory language.

In her will, decedent Moore left her residuary estate to a beneficiary who was a resident of Poland. The language of the bequest included that the residuary estate was to be the beneficiary’s “to be hers absolutely and forever.” Additional language stated that the beneficiary, who was a minor at the time of Moore’s death, was to come to New York City to receive the payment. The question for the court was whether the executor was required to make the payment to the beneficiary in New York City, or if the executor could send the payment to the beneficiary in Poland.

The court concluded that the provision stating that the executor is to make the payment in New York City was not a mandatory, but precatory language. Language in a will that surrounds a bequest can be mandatory or precatory. If the language is mandatory, an imperative duty is imposed, meaning that it is a condition of receiving the bequest and the court can enforce the provision. If the language is precatory, then no imperative duty is imposed. Performance is up to the discretion of the beneficiary. In other words, the obligation is moral not legal. The court cannot order the beneficiary to perform as a condition for receiving the bequest. Typically, precatory language includes “wish,” “want,” “recommend,” or “desire.”

Published on: August 13, 2017

Court Discusses Procedural Issues

by Stephen Bilkis

In this estate case, petitioner appealed an order and judgment (one paper) of the Supreme Court, Suffolk County, dated February 10, 1981, as denied his motion for summary judgment and thereupon dismissed a writ of habeas corpus. By order dated July 25, 1983, this court remitted the matter to the Supreme Court, Suffolk County, to hear and report, and held the appeal in abeyance in the interim.

Pursuant to an order of this court, this matter was remitted to the Supreme Court to hear and report on the issue of whether the appellant’s failure to appear on March 7, 1978, the date set for the hearing on a petition to adjudge him in contempt of court for noncompliance with a turnover order in a probate proceeding, constituted a voluntary waiver of his right to be present and proffer evidence in his defense. Initially, we note that a prompt evidentiary hearing on this issue was obstructed for over three years by the appellant’s numerous, meritless attempts to appeal directly to the Court of Appeals or collaterally attack this court’s order dated July 25, 1983.

At an evidentiary hearing commenced on September 25, 1986, the appellant’s former wife, who is an attorney, testified as a witness. According to the witness, on March 7, 1978, the appellant was of counsel for her client in the trial of a matrimonial action before a Justice, in the Supreme Court, Bronx County. Since the testimony of a witness had not been completed on March 6, 1978, the Justice directed the parties to return with counsel the next day to continue the trial. To her knowledge, the appellant was on trial before the Justice the entire day of March 7, 1978. The witness conceded that she had not attended the trial of the matrimonial action on either March 6 or 7, 1978, but maintained that she knew the aforenoted facts were true from having read the trial transcript when the judgment in the action was on appeal.

Published on: July 9, 2017

Court Decides Whether 1958 Will has been Revoked- In re Grant’s Will, 334 N.Y.S.2d 780 (N.Y. Surr. Ct. 1972)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a testator properly revoked a prior will.

As long as he (or she) is not mentally incapacitated, a testator has the right to revoke a will at any time. Under New York EPTL § 3-4.1, there are 3 ways to revoke a will. 1. The testator can intentionally, physical destroy the will by ripping it up, burning it, cutting, shredding it, or in some other way destroying it. If the testator instructs another person to destroy the will, then that would serve as a revocation as well. 2. The testator can write and execute a new will. Doing so would automatically revoke a prior will and codicils, if any. To make his intentions absolutely clear, in the new will the testator can include a clause stating that the new will revokes any prior wills and codicils. Executed under the proper circumstances, a holographic or nuncupative will would also revoke a prior will. 3. The testator can revoke a will by creating a document (other than a new will) indicating his intention to revoke his will.

In In re Grant, decedent Grant was a resident of Kings County, New York, but spent time in the Barbados and had real property in the Barbados. He also had personal property in New York. In 1958 the decedent executed a will in New York in which he left his real property in Barbados to two of his sisters. He left his residuary estate which consisted of personal property in New York, to one of his brothers. He had another sister and another brother who did not receive anything under the 1958 will.

Published on: June 24, 2017

Is Service of Process on a Public Administrator Sufficient to Confer Personal Jurisdiction?

by Stephen Bilkis

The unique issue before the court is whether service of process upon the Public Administrator is sufficient to confer personal jurisdiction over an estate: (a) which petitioner claims is worth less than $10,000, (b) where no probate proceeding has been initiated and (c) where no letters of administration have been issued. The Public Administrator has specially appeared in this proceeding to contest service of process upon it on behalf of the named estate respondent. Co-Respondent seeks dismissal of the entire proceeding based upon petitioner’s failure to serve a necessary party, to wit: the estate.

The Petitioner is a cooperative housing company organized under the Mitchell-Lama law. Pursuant to the Rules and Regulations governing such cooperative, on August 14, 1991 petitioner obtained a certificate of eviction from HPD authorizing petitioner “to immediately commence any legal proceedings deemed appropriate for the termination of a tenancy” against both “the Tenant (deceased) and co-respondent Occupant.” The certificate of eviction mentions in part that co-respondent who also appeared as a respondent in the administrative proceeding, submitted to the administrative tribunal a will purportedly made by the tenant in which the co-respondent’s daughter and co-respondent are named as the sole beneficiaries. The administrative tribunal rejected his argument that as his mother’s beneficiary he was entitled to live in the apartment.

It is uncontested that the aforementioned will was never admitted to probate and that otherwise no estate representative, either permanent or temporary, was ever appointed by the Surrogates Court. Petitioner thereafter commenced this summary dispossess-holdover proceeding. Service upon the estate of the decedent was made by service upon the Public Administrator.

Published on: March 23, 2017

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: March 5, 2017

Court Discusses Power of Attorney as it Relates to Estate

by Stephen Bilkis

This is an appeal brought before the Supreme Court, Appellate Division, Second Department, Kings County.

The issue here 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 LCC, 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.

The court concluded 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.

Published on: March 5, 2017

Objectant in Case Alleges Undue Influence in Will Case – Bach, Matter of, 519 N.Y.S.2d 670 (N.Y. App. Div., 1987)

by Stephen Bilkis

Decedent M. Bach executed a will in 1977 that named as beneficiaries her two sisters who were living at the time, and the surviving son of a third sister, Haber. The will also provided that if either of the sisters predeceased her, then her share would go to Metzger, the daughter of one of those sisters.

In 1977, Bach fractured her hip bone. Haber, who was a college professor, quit his job to attend to Bach’s affairs full time. She executed a power of attorney naming Haber as his agent and transfer control of her financial accounts to joint accounts with him. Haber also assisted Bach in finding nursing homes in which lived until her death in 1984.

In 1981 Haber drafted a new will that named him as the executor of the estate and as Bach’s sole heir. Bach’s sisters had passed away by that time, but Metzger had not, and she was not named in the new will. If the will was not changed, then Metzger would be entitled to the deceased sisters share of Bach’s estate.

Published on: February 12, 2017

Court Discusses Alleged Fraud and Undue Influence in Probating a Will

by Stephen Bilkis

This is a proceeding for the probate of the will of the deceased. The will was propounded by testator’s widow, and contested by and others, children of testator. From a decree of the supreme court, general term, (15 N. Y. Supp. 601,) reversing a decree of the surrogate’s court, Kings County, (10 N. Y. Supp. 744,) refusing probate, and directing issues for a jury, contestants appeal. Appeal dismissed.

The general term, on appeal from the decree of the surrogate, which admitted to probate the will of 1881, and the codicil thereto, and denied probate to the will of 1887, on the ground that it was obtained by fraud and undue influence, reversed the decree ‘on questions of fact,’ and directed issues to be framed and sent to a jury for trial. The appeal to this court is taken on the ground that the general term had no power to review the facts, for the reason that the notice of appeal to the general term did not specify that the appeal was taken on the facts, but was, in general terms only, ‘from the decree and each and every part thereof.’ It is insisted that upon such a notice only questions of law presented by exceptions were brought before the general term, and that it could not reverse on the facts upon a consideration of the weight or preponderance of evidence, or because, in its judgment, the facts should be re-examined by a jury. The appellants rely in support of this contention upon section 2576 of the Code of Civil Procedure. That section, which is found in the article relating to appeals from orders or decrees of surrogates, is as follows: ‘The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case to be made and settled by the surrogate, as prescribed by law for the making and setting of a case upon an appeal in an action.’ The claim is that, if the appellants desire a review upon the facts in the Supreme Court, they must so specify in their notice of appeal. Section 2576 does not require that such specification should be made, nor is it elsewhere prescribed, but this, as is claimed, is an implication from the language of the section. We are not satisfied that this contention is well founded. Section 2574, which prescribes how an appeal may be taken, declares that it must be by written notice, to be served, ‘referring to the decree or order appealed from, and stating that the appellant appeals from the same or from some specified part thereof.’ It is not required that the grounds of the appeal shall be stated in the notice. If, under section 2576, it is necessary to specify that the appeal is upon the facts, in order to give jurisdiction to the appellate court to review them, it would seem equally necessary that, if the appeal was upon the law, it should be so specified, in order to enable the court to review the exceptions. We think section 2576 was intended to declare affirmatively the power of the general term to review both the facts and the law on appeals from surrogate’s

The appellants rely in support of this contention upon section 2576 of the Code of Civil Procedure. That section, which is found in the article relating to appeals from orders or decrees of surrogates, is as follows: ‘The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case to be made and settled by the surrogate, as prescribed by law for the making and setting of a case upon an appeal in an action.’ The claim is that, if the appellants desire a review upon the facts in the Supreme Court, they must so specify in their notice of appeal. Section 2576 does not require that such specification should be made, nor is it elsewhere prescribed, but this, as is claimed, is an implication from the language of the section. We are not satisfied that this contention is well founded. Section 2574, which prescribes how an appeal may be taken, declares that it must be by written notice, to be served, ‘referring to the decree or order appealed from, and stating that the appellant appeals from the same or from some specified part thereof.’ It is not required that the grounds of the appeal shall be stated in the notice. If, under section 2576, it is necessary to specify that the appeal is upon the facts, in order to give jurisdiction to the appellate court to review them, it would seem equally necessary that, if the appeal was upon the law, it should be so specified, in order to enable the court to review the exceptions. We think section 2576 was intended to declare affirmatively the power of the general term to review both the facts and the law on appeals from surrogate’s

Published on: November 30, 2016

Court Looks at Jurisdiction Issue While Probating an Estate

by Stephen Bilkis

In an action to recover damages for medical malpractice and lack of informed consent, etc., in which the defendant SSS Medical Center commenced a third-party action against KC, as successor executor of the estate of Mr. RR, KC appeals from an order of the Supreme Court, dated May 1, 2009, which, inter alia, denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of Mr. RR terminated by operation of law.

On July 18, 2002, the plaintiff Mr. T underwent surgery at SSS Heights Medical Center (hereinafter SSS), and Mr. RR served as his anesthesiologist. Mr. RR died on October 1, 2002. On October 21, 2002, Mr. RR’s father, Mr. X, as executor of Mr. RR’s estate, petitioned the Surrogate’s Court, New York County, to have Mr. RR’s will admitted to probate. The petition to admit the will to probate stated that Mr. RR died while a domiciliary of New York, and that KC was named in the will as successor executor. By decree dated November 25, 2002, the will was admitted to probate, and on November 26, 2002, letters testamentary were issued to Mr. X. Thereafter, Mr. X died.

In 2003 the plaintiffs commenced the main action against, among others, SSS. In 2008, SSS commenced the instant third-party action against KC (hereinafter the appellant), as successor executor of Mr. RR’s estate, seeking common-law indemnification. The appellant, a resident of Colorado, retained Colorado attorneys X&Y. On behalf of their client, X&Y entered a stipulation with SSS, in which, inter alia, the appellant 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 Mr. RR. The stipulation also stated that SSS “will seek no recovery from the Estate of Mr. RR, M.D., except to the extent of any professional liability insurance available to the Estate of Mr. RR, M.D., deceased.”