Probate & Estate Litigation

Published on: September 1, 2015

Court Looks at Will Construction

by Stephen Bilkis

The two subscribing witnesses testified to the due execution of decedent’s holographic will and to her testamentary capacity at the time of the execution; that the last page of the instrument, the only one they saw, bore no additional writings below their signatures.

The changes in the street numbers of the addresses of the legatees under items 13 and 14 are immaterial, as well as the interlineation of the amount of the legacy of item 13, as the amount thereof was increased by figures immediately above it and that in turn was interlined and the original amount reinstated with the initials of the decedent above it; the amount of item 16 was interlined, and a lesser sum substituted therefor immediately above it, which in turn was likewise interlined and the original amount restored. Equally immaterial is the phrase in item 15 which reads in payment of money ($500) she gave my sister Mae and for which I thank her. Those interlineations and additions being fair upon their face and unexplained by any evidence to the contrary must be presumed to have been made before the execution of the will. Crossman v. Crossman, 95 N.Y. 145, 153.

The Court finds that the following legacies were originally written in the following sums: item 6–$1,000; item 17–$100; item 18–$100; item 19-$50; and item 20-$200, which sums were interlined and other sums substituted in their places; the interlineations were made either in pencil or ink and the substituted sums in ink, which ink interlineations and substitutions are in different color ink than the original legacies, wherefore it is found that such interlineations and substitutions of different sums were made subsequent to the execution of the will. Matter of Ross’ Will, 177 App.Div. 719, 164 N.Y.S. 884.

Published on: July 21, 2015

Court Listens to Hearing For Bank to Recover Monies Via Default Judgment

by Stephen Bilkis

In this action by plaintiff JP Bank, to recover monies based upon the default of defendants S.I. Wood Furniture Corp. (Wood), Ikram Said, and Amal Said, a/k/a Amal E. Said, defendants, under a commercial line of credit and a concurrently executed personal guaranty, JP Bank moves, pursuant to CPLR 3212, for summary judgment in its favor as against defendants in the amount of $249,770, with accrued interest in the sum of $5,049.94, interest on $249,770 at its prime rate plus .50%, plus late fees in the sum of $1,935.25, and reasonable attorneys’ fees and expenses.

By a Business Credit Application dated October 17, 2005, Wood applied to JP Bank for a Business Revolving Credit Line in the sum of $250,000. The Business Credit Application set forth the business information of Wood and the personal financial information of Ikram and Amal, as Wood’s president and vice-president, respectively.

A New York Estate Lawyer said that under the section, entitled Authorizing Resolution, Ikram, as the president of Wood, stated that at a corporate meeting. it was resolved that Wood could complete the Business Credit Application and that Wood would then “be obliged to fulfill all of the terms and conditions of the respective note and Credit Account Agreement which it shall thereafter receive. This section of the Business Credit Application was executed by both Ikram and Amal on October 17, 2005.

Published on: July 6, 2015

Court Discusses Restrictive Covenants

by Stephen Bilkis

This action is brought to restrain the violation or the threatened violation by the defendant of a certain restrictive covenant claimed by plaintiffs to affect the lots or parcels of land within an area located in the Borough of Brooklyn now or heretofore known as ‘XYZ Property’. The area in question is bounded on the west by Q Avenue, on the north by AD Road, on the east by RGR Avenue and on the south by FNR Street.

In the year 1893, Mr. JJ died testate seized of said real property. His will was duly admitted to probate by the Surrogate. 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 Mr. JJ.’ By said map, the land within the area was subdivided into building lots. All of the lots within the tract, except those fronting on Q Avenue, were conveyed by deeds containing a restrictive covenant in form as follows:

Published on: July 1, 2015

Court Reverses Order Disqualifying Executrix

by Stephen Bilkis

In a probate proceeding, the petitioner, Mrs. JP, appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated October 16, 2007, as, after a hearing, granted those branches of the motion of the objectant, Mr. EP III, which were to disqualify her from serving as executrix for the estate of a deceased relative and to reinstate letters of administration previously issued to the objectant.

The order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the objectant, Mr. EP III, which was to disqualify the petitioner is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the objectant is denied, and the matter is remitted to the Surrogate’s Court, Kings County, for further proceedings in accordance herewith.

The right of a testator or testatrix to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded, as explained in the case of Matter of Flood ( 236 N.Y. 408, 410, 140 N.E. 936). However, in the case of Matter of Mergenhagen (50 A.D.3d 1486 1488, 856 N.Y.S.2d 389) the Surrogate may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper administration of the estate, and future cooperation is unlikely.

Published on: May 24, 2015

Action Brought Pursuant to Real Property Law Sec. 500 to Have Mortgage Cancelled

by Stephen Bilkis

This is a motion by plaintiff for summary judgment under Rule 113 of the Rules of Civil Practice. This action is brought pursuant to section 500 of the Real Property Law to have a mortgage cancelled of record on the ground that it is outlawed by the statute of limitations (Section 47-a, Civil Practice Act).

The answer consists of general denials and two affirmative defenses, namely, (1) that the mortgagors on September 17, 1949 acknowledged the mortgage and the indebtedness in writing, thereby extending the statute of limitations, and (2) upon information and belief, that sometime after September 17, 1949 and prior to the expiration of the statute of limitations, the mortgagors absented themselves from the jurisdiction of this court in that they or either of them were then and still are residing in Italy.

On February 8, 1929, Mr. A.C. and Mrs. L.C., his wife, executed and delivered to one Mr. P.K. a mortgage in the sum of $2,750, covering premises owned by them as tenants by the entirety, with interest at 6 per cent. payable quarterly until February 8, 1932, when the balance of the principal sum became due and payable. On the same day this mortgage was assigned to Ms. K.D. Said assignee died testate on August 13, 1940 a resident of Kings County; and his will was admitted to probate on January 22, 1941, and the defendant herein duly qualified as executor thereunder and is still acting in that capacity.

Published on: May 12, 2015

Court interprets Will Document

by Stephen Bilkis

A New York Probate Lawyer said that the records reflect that these two cases involves matters of probate which was resolved by the court accordingly. In the first probate proceeding, Paragraph ‘Fifth’ of testatrix’ will reads: ‘Enclosed in the same envelope with this Will are two sealed envelopes addressed to my four sons jointly. These letters contain information as to my wishes for the disposition of certain items of personal property. It do not bind my Executors by these wishes but ask they give consideration to them.’ One of the letter referred to, dated and simply signed ‘Mamma’, is a moving personal expression of her deep love and affecting for and abiding faith in her four sons. It makes no mention of her property. The other letter, undated and unsigned, suggests distribution of certain items of personal property. Petitioner presents both letters for the Court’s consideration as possibly incorporated in the will by reference.

As stated in the will, testatrix’ letters to her sons, her nominated executors of the estate, were not to bind them. Consideration for her wishes was all she asked. Her unattested memoranda of desire and expectation are intimately personal in their nature and are couched in terms of love and suggestion, but not of command. Neither her short and concise will nor the letters themselves evidence any intention to bring into the former the mass of detail contained in the latter which, if introduced, would change nothing and would not legally affect the administration or distribution of her estate. Accordingly, the first alternative prayer for relief, granting probate to the attested instrument together with the letters referred to in paragraph ‘Fifth’ thereof, is denied; the second alternative prayer for relief, admitting to probate only the attested instrument, is granted. Settle decree on notice.

A New York Estate Lawyer said that in the second contested probate proceeding, the executor appeals from an order of the Surrogate’s Court, dated February 8, 1988, which denied his motion to set aside a stipulation of settlement and which granted the objectant’s cross motion for leave to enter a money judgment in the principal sum of $20,000.

Published on: March 2, 2015

Petition Files a Petition to Compel

by Stephen Bilkis

New York Probate Lawyer said that RF died intestate in December, 1947 and letters of administration were issued to his widow, the respondent, in the same month. In September, 1948 respondent filed an income tax return for 1947 on behalf of the decedent. During the return’s audit, respondent executed three assessment waivers, the last of which extended to June, 1954 the time of the appellant, United States of America, for the making of an assessment. In May, 1954 a deficiency assessment for income taxes was made by appellant in the sum of $32,440.09 and, in August, 1954 the District Director of Internal Revenue filed with the respondent a notice of claim for payment of that sum. The respondent neither paid nor rejected appellant’s claim.

In 1962 appellant filed a petition to compel respondent to account. In defense, respondent alleged the six-year limitation period provided in the 1939 Internal Revenue Code. Surrogate Moss, as a matter of law and in the exercise of discretion, denied appellant’s petition.

A New York Estate Lawyer said that the Surrogate conceded that, under former section 211 of the Surrogate’s Court Act, the filing of a notice of claim and its rejection were deemed the commencement of a special proceeding, effectively tolling State statutes of limitation.

Published on: October 23, 2014

Court Looks at Motion to Vacate

by Stephen Bilkis

A New York Probate Laywer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent’s predeceased brother, HK; and, DK, BK, and KK (the children of decedent’s predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent’s home.

A New York Estate Lawyer said that on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the “name and relationship” of all persons with a “legacy, devise or other interest, or nature of fiduciary status” is asked. In G’s original probate petition, she stated that she was the decedent’s live-in companion and the beneficiary of the decedent’s entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent’s estate is G’s sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent’s entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent’s home, as G’s address. In response to question 8(a), which asks whether “any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent,” G indicated that she, “petitioner,” had a confidential relationship with the decedent.

Published on: September 2, 2014

Court Determines Fees for Guardian ad Litem

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will “pours over” into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

On 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the “F Revocable Trust U/A dated 24 October 2003.” At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent’s long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent’s assets were transferred to the trust while he was alive. As a result, the will was designed to be a “catch all” so that any stray assets left in the decedent’s estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

Published on: September 1, 2014

Court Determines Fees for Guardian ad Litem can be Paid with Trust Assets

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will “pours over” into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

Queens Probate Attorneys said that on 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the “F Revocable Trust U/A dated 24 October 2003.” At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent’s long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent’s assets were transferred to the trust while he was alive. As a result, the will was designed to be a “catch all” so that any stray assets left in the decedent’s estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.