Probate & Estate Litigation

Published on: October 12, 2016

Court Discusses NY Estate Tax Law 249

by Stephen Bilkis

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

The executrix made a motion to fix the tax returnable on 16 March 1972. While the State Tax 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.

The Commission appeared but made no response, formal or informal, to the relief requested by the taxpayer.

Published on: September 27, 2016

Matter of Hickey

by Stephen Bilkis

NY Slip OP 05895-August 25, 2016

The decedent died on July 14, 2016, without a plan for what would happen to his law office in the event of his passing. The local bar association, Tompkins County Bar Association(TCBA) moved for an Order to appoint a lawyer as a custodian of the files in decedent’s office in order to protect the decedent’s clients. TCBA also moves (Rules of Professional Conduct 22 NYCRR 1200.0) Rule 1.15 (g) for a lawyer to be appointed as a successor signatory for the decedent’s clients. The Lawyers Fund for Client Protection and The Committee on Professional Standards did not oppose.

The Court granted the motion and the TCBA was appointed as the custodian of the law firm (Matter of Van Zandt 53 AD 3d 982[2008]). The issue of a successor signatory for the decedent’s law firm was denied with the appropriate application made to the Supreme Court (Rules of Professional Conduct [22 NYCRR 1200] Rule 1.5 [g][2].

Published on: August 12, 2016

Petitioner Seeks to Compel Production of Wills

by Stephen Bilkis

In these two proceedings to compel the production of the wills of the testator, ask the court to seal the documents which have been produced by the respondent.

By petitions dated July 25, 2008, petitioners sought to compel the New York City Police Department (NYPD) to produce documents in their possession purporting to be the wills of the testator. Pursuant to SCPA 1401, the court directed the NYPD to produce any documents in their possession purporting to be the decedents’ wills in court on August 12, 2008.

On August 12, 2008, counsel for the petitioners, counsel for the testator’s parents, and counsel for the NYPD appeared in court. The NYPD complied with the order and turned over the documents to the court. Asserting that matters contained in the documents may cause embarrassment to the decedents and their families, the petitioners, joined by the testator’s parents and the NYPD, made an oral application to seal the documents. The court declined to entertain the oral application and instead provided the petitioners, and the parents, as well as the NYPD, with an opportunity to submit their written application by August 14, 2008. In the interim, the court has maintained the relevant documents in chambers. The petitioners submitted their written application, while the testator’s parents and the NYPD did not.

Published on: August 5, 2016

Court Discusses Language Used in Will and Codicil

by Stephen Bilkis

A Probate Lawyer said that, this is a proceeding for the probate of the will of the deceased. From a decree of the Appellate Division, affirming a decree of the Surrogate’s Court admitting the will and a codicil thereto to probate and construing the provisions thereof, and others appeal. Judgment modified.

The Appellate Division has affirmed a decree (121 N. Y. Supp. 100) of the surrogate of Kings County, which admitted to probate the will of the deceased, and which construed certain of its provisions. It consisted of two instruments, a will and a codicil, both of which were wholly written by the testator and were executed a few years before his death. The testator died April 9, 1909, unmarried and leaving no descendants. The will was executed in 1899. By its first and second articles the testator gave to his nieces respectively, legacies of $75,000 and $50,000. He directed that the two legacies should be held in trust, and that ‘the income shall be paid only to said legatees respectively and an amount of ten thousand dollars ($10,000) of the principal may be paid to each of them if they so elect when they attain the age of 30 years, to purchase and furnish a home.

The remainder of their respective legacies shall remain in trust and in case of the death of either of them without issue, before the death of their Aunt, legatee under Art. IV herein, then the share of such decedent shall in such event revert to her the said aunt. And in case either said nieces should die without issue subsequently to the death of their Aunt the said and prior to the death of their grandmother then in such case their respective shares shall in like manner revert to their grandmother.’ Article 3 gave to his brother, a plantation in Louisiana. By article 4 the testator gave to his sister, known in the family as a legacy of $125,000, to be held in trust ‘and the income thereof to be paid to herself only, with this proviso however that she may if she wish draw not exceeding Ten Thousand dollars ($10,000) with which to purchase and furnish a home for herself. In case of her death without issue and prior to that of her mother, all her interest herein shall revert to her mother.’ He also gave to her all his ‘interest in and to the estate’ of his mother. By article 6 the testator appoints his mother his ‘residuary legatee, the amount to be placed in trust as herein provided in Art. VIII, for her sole benefit, and the income come thereof to be paid to her. At her death, the principal and any accumulated income there may be shall be divided pro rata between the legatees named in articles I, II, and IV herein respectively upon the basis of their respective legacies herein and to be subject to the same trust restrictions stated herein appertaining to their several legacies hereunder.’ By article 8 the testator appointed the Union Trust Company of the city of New York as the trustee for the trusts in his will and as the executor thereof. A year later the testator executed the codicil. By that instrument he, first revoked the legacies given in article 4 of the will to his sister and substituted in place thereof the sum of ‘$25,000, SUBJECT TO ALL THE CONDITIONS And terms as expressed in said art. iv, with this exception to wit: that the sum of $2,500, instead of ten thousand dollars, be allowed her out of said amount for purchase of a home for herself if she so elects.’ Next he bequeathed to his sister, the sum of $35,000 and to his brother, the sum of $10,000, and then provided as follow: ‘And I hereby make these two legatees, upon the death of my mother, pro rata residuary legatees under the terms and conditions as set forth in Art. VI herein, as additional residuary legatees. The above legacy to his brother is in addition to the one in his favor under Art. III herein.’

Published on: April 27, 2016

Plaintiff Moves for a Summary Judgment in Lieu of Complaint for Payment

by Stephen Bilkis

Plaintiff moves pursuant to CPLR § 3213 for an Order granting summary judgment in lieu of complaint for payment allegedly owed on a promissory note. “Defendants” or “the Estate”, as executors of the Estate of the decedent cross-move for summary judgment dismissing this proceeding pursuant to § 1810 of the Surrogate’s Court Procedure Act.

This case arises from a loan transaction between plaintiff and the decedent a real estate developer. Prior to his death, he was a 55% owner in Flatbush Extension, LLC (“Flatbush Extension”), which owned properties located at 67, 75, and 85 Flatbush Avenue in Brooklyn. On or about March 27, 2007, U.S. Bank and Flatbush Extension entered into a secured loan agreement (the “Loan Agreement”) pursuant to which the parties agreed that Flatbush Extension could borrow up to $50,000,000 in connection with the development of a luxury condominium project (“Flatbush Extension Project”).

Published on: April 20, 2016

Executrix of Estate Brings Suit for Wrongful Death

by Stephen Bilkis

In an action to recover damages for personal injuries and for wrongful death, the defendant (hereinafter Standard) appeals from so much of an order of the Supreme Court, Kings County, dated December 16, 1985, as, inter alia, denied its cross motion to dismiss the complaint as against it.

The decedent initially commenced this action for personal injuries against the defendant Standard, claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent’s daughter, to be substituted as the plaintiff in place and stead of her father in her capacity as the executrix of his estate and to amend the original complaint to include a cause of action for her father’s alleged wrongful death. Special Term denied Standard’s cross motion to dismiss the complaint as against it, rejecting Standard’s argument that the Surrogate’s Court, Kings County did not have the power to declare the executrix of her father’s estate and probate his will since he was a domiciliary of Florida at the time of his death.

Published on: April 18, 2016

Legatee Petitions Court to Compel Payment of Legacy

by Stephen Bilkis

In a probate proceeding in which legatee petitioned pursuant to SCPA to compel the payment of a legacy, nonparty appeals, by permission, from so much of an order of the Surrogate’s Court, Kings County, dated December 4, 2008, as, sua sponte, disqualified his law firm, and all members and associates of that firm, from appearing as the petitioner’s attorney.

The appellant 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, he joined the Rubenstein firm, a small law firm specializing in estate practice. Prior to his association, the Rubenstein firm was composed of only two other attorneys. In late November or early December 2006, before appellant left his employment as chief court attorney, the firm was retained to represent the petitioner in this Surrogate’s Court proceeding.

Published on: January 18, 2016

Petitioner Claims She is Entitled to Decedent’s Net Estate and Letters Testamentary

by Stephen Bilkis

In this probate proceeding petitioner claims that under the terms of the propounded instrument she is entitled to decedent’s net estate and to letters testamentary. The respondents have appeared and filed their consent to probate the instrument, but dispute petitioner’s claim. A construction is requested to determine whether the provisions of paragraph ‘Fourth’ are operative and dispose of decedent’s estate.

The instrument is a joint and mutual will of decedent, and her husband. He died first, on April 30, 1958, leaving only jointly owned property, and his will was therefore not probated. She died on December 13, 1958 leaving personal property. By said will each devised and bequeathed to the survivor the entire net estate, but made no alternative disposition in the event he or she predeceased, except as set forth in paragraph ‘Fourth’ of the will. It is therein provided that in the event the deaths of both of them would occur ‘simultaneously or approximately so, or as a result of a common accident or calamity, or under circumstances causing doubt as to which of us survived the other,’ then the entire net estate was devised and bequeathed to the sister of the decedent herein, and in identical eventualities nominated and appointed her executrix ‘of this our joint and mutual will and testament.’

In another case, this is an application for limited letters of temporary administration. Decedent executed a will in Ireland which was witnessed by the manager for the United States Lines in Ireland and the American Consul in Cork. Beside a small bequest to a friend, the entire residuary is bequeathed to petitioner described as decedent’s granddaughter. The will does not name an executor. The granddaughter petitions for probate of the will and for letters of administration c. t. a. She makes this motion for limited letters of temporary administration so that she can commence an action against the United States Lines before the statute of limitations runs out. This motion is opposed by Agnes Schmidt, one of two sisters who are distributees of decedent, on the ground that the wrongful death suit is ‘exclusively for the benefit of the decedent’s wife, husband, parent, child or dependent relative.’ She argues that petitioner is none of these and that under section 118 of the Surrogate’s Court Act, letters should issue to a distributee, namely, herself, so that she might bring the action against the steamship line.

Published on: January 14, 2016

Objectant Pro Se Moves for Order Granting Trial By Jury

by Stephen Bilkis

In this contested probate proceeding, objectant pro se, moves for an order granting her a trial by jury. The proceeding was commenced by petitioner on December 15, 2005. Respondent filed objections to probate on August 3, 2006.The decedent died testate on October 24, 2005. Petitioner is decedent’s sister; she is a distributee, as well as the nominated executor and residuary beneficiary under the propounded instrument dated May 11, 1974. Respondent is a distributee; she is a daughter of one of the decedent’s pre-deceased brothers. She does not receive anything under the propounded instrument.

The respondent asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was “told that the conference would be first.”1 She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she “signed for this.” Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.

The issue in this case is whether respondent’s motion for an order granting her a trial by jury should be granted.

Published on: December 11, 2015

Court Looks at Will Construction Issue

by Stephen Bilkis

In this probate proceeding both the petitioner and the respondents ask that the propounded holographic instrument be admitted to probate but differ sharply as to construction of the will. The text of the provisions of the will reads: ‘First, after my lawful debts are paid, I give to my wife all my personal as well as all my real property wherever located together with any mixed property I may have. ‘I hereby appoint my beloved wife executrix without bond of this my last will and Testament. ‘In case of accidental and simultaneous instant death of both myself and my wife and in such case only do I direct my sister in law of 253 East 78 St New York City to be the executrix without Bond of this my last will and Testament and give and bequeath to her all my personal as well as all my real property wherever located together with any mixed property I may have. ‘I hereby appoint my wife to be Executrix of this my last Will and Testament.’

The parties have entered into a stipulation providing: ‘That the wife of the decedent herein, died on the 13th day of February, 1957, a resident of 519 West Chester Street, City of Long Beach, Nassau County, of natural causes. ‘That the decedent herein, died on the 20th day of March, 1957, a resident of 519 West Chester Street, City of Long Beach, Nassau County, of natural causes.’

Since the wife predeceased the testator, the bequest to her is ineffective and there is required a construction of the paragraph of the will relating to the wife. The language of the paragraph is not only plain and unambiguous but also emphatic. The contingency contemplated in the paragraph in question relates to the ‘accidental and simultaneous instant death’ of the testator and his wife and ‘in such case only’. This contingency did not occur. Both the petitioner and the respondents refer to a will executed simultaneously by the wife which is identical to the propounded instrument except for the substitution of the word ‘husband’ where the word ‘wife’ appears and the designation of them as ‘sister’ where the words ‘sister in law’ appear.