Wills

Published on: April 22, 2016

Court Decides Case Regarding Interpretation of Will

by Stephen Bilkis

This is an application by the Public Administrator of the County of Kings for a construction of testatrix’ will and other relief. Testatrix died on December 27, 1919 leaving a will dated February 11, 1905 which was duly admitted to probate in this Court on June 18, 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, testatrix devised all her property, real and personal, to her friend, who was also named sole executrix with the further proviso as follows: ‘after Death the Balance what is left go to my Brothers or their heirs. (naming them) To be Equally divided Between my Brothers or heirs of my Brothers’ (italics, capitalization and spelling as in original).

It appears that upon testatrix’ death took possession of real and personal property of testatrix and by conveyances, transfers, assignments, sales, and alienations, by said testatrix individually and as executrix, the assets of the estate were disposed of among the several persons named in the petition herein. The question posed is whether by testatrix’ will she took a fee or a life estate with or without power of alienation or disposition.

Published on: April 21, 2016

Trustee Brings Action for Judicial Settlement of Account

by Stephen Bilkis

The decedent died on December 31, 1915. His will, made on October 20, 1915, was admitted to probate on March 31, 1916. The Kings County Trust Company was granted letters testamentary on March 31, 1916 and letters of trusteeship on October 24, 1934.

By the ninth paragraph of the will testator gave his residuary estate to his executor, in trust, to pay the net income arising therefrom to his wife, for and during her life. The wife died on March 11, 1959. The will provides that upon her death ‘said trust is to terminate, and the corpus thereof is to go, and I give, devise and bequeath the same, in equal shares, among my then surviving nephews and nieces, and the issue of any deceased nephew or niece (except issue of my niece), such issue taking in equal shares the share their parent would have taken if living. It being my intention not to make the issue of the niece beneficiaries under this my Will.’ The trustee brought this proceeding for the judicial settlement of its account and has requested in its petition ‘That the Court find and determine that, in accordance with the intent of said decedent, as set forth in Paragraph Ninth of his said Will, the net distributable principal of said now terminated trust is primarily divisible into four equal major shares, one each for the lawful issue living at such termination and who represent decedent’s deceased nephews and nieces, respectively, the issue of each said deceased nephew and niece, respectively, to receive, in equal sub-shares, per stirpes, the equal major share which the deceased nephew or niece whom they represent would have taken, if living; and direct distribution accordingly.

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 19, 2016

Court Decides Case Regarding Preliminary Letters Testamentary

by Stephen Bilkis

In a probate proceeding, the petitioner, appeals from so much of a decree of the Surrogate’s Court, Kings County, dated July 1, 2004, as denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of the decedent and granted those branches of the motion of the objectant, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to the objectant.

A testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her affairs, and that selection is not to be lightly discarded. While the Surrogate may disqualify a person from receiving letters of administration where the friction between such person and a beneficiary interferes with the proper administration of the estate.

Published on: April 17, 2016

Court Decides Material Provisions of a Will Regarding Real Property

by Stephen Bilkis

The testator left him surviving his widow, three sons, and one daughter, who were his sole heirs at law and next of kin. One of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; the widow, died September 22, 1904, a little over four years after the death of her son, the father of the plaintiff.

At the time of the testator’s death his children were under age and unmarried. The testator died seized of certain real estate in the states of New York, New Jersey, and Vermont. The plaintiff brought this action to partition lands in the county of Kings in this state, asserting she had an interest therein for the reason that under the terms of the will of the interest of her father, one of the remainder men, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, under the will. The trial justice decided in favor of plaintiff. The judgment entered upon that decision was reversed by the Appellate Division, and the complaint dismissed. Plaintiff and her sisters, defendants, appeal to this court.

Published on: April 16, 2016

Court Decides Case Regarding Alleged Violation of Restrictive Covenant

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 “Manor’”. The area in question is bounded on the west by Flatbush Avenue, on the north by Lincoln Road, on the east by Rogers Avenue and on the south by Fenimore Street.

In the year 1893, the decedent 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.

Published on: April 15, 2016

Court Decides Validity of Claim for Public Assistance against Estate

by Stephen Bilkis

This was a proceeding brought by BS, the executor of the estate of her father, LS, before the Surrogate’s Court of the City of New York, Nassau County, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to ZS, LS’s wife, from 10 June 1996 to 3 October 2002, while LS was still alive.

LS and ZS had two children, BS and MS, who is mentally retarded.

Published on: March 27, 2016

Court Decides Whether Codicil Revives Will

by Stephen Bilkis

In this estate case, the question for the determination of the Court is whether the codicil of March 8, 1956 revived the will of November 23, 1954 and a codicil thereto of December 20, 1954 which had been revoked by the will of July 31, 1955.

The proof adduced establishes that the propounded instruments were executed by decedent and subscribing witnesses in accordance with statutory requirements. The republication of decedent’s 1954 will by the 1956 codicil operated as a revocation of the will dated July 31, 1955. The absence of a revocation clause in the 1956 codicil does not change the result.

The Court holds that decedent validly revoked the instrument dated July 31, 1955 and reexecuted and republished the propounded instruments bearing dates November 23, 1954 and December 20, 1954 by the codicil dated March 8, 1956, and that at the time the decedent was of sound mind, fully competent to make a will and under no restraint. probate of the will of November 23, 1954 and the codicils of December 20, 1954 and March 8, 1956 is decreed. Proceed accordingly.n an action to invalidate two deeds and two general releases and to recover damages grounded on fraud and forgery, the plaintiff appeals from an order of the Supreme Court, Kings County, dated April 7, 1987, which, after a nonjury trial directed that judgment be entered in favor of the defendant.

Published on: March 26, 2016

Court Discusses Investment Provision of a Will

by Stephen Bilkis

As an incident to trustee’s intermediate account of four trusts created under articles ‘Seventh,’ ‘Eighth’ and ‘Ninth’ of the will, the Court’s instruction is sought as to the investments authorized by article ‘Fourteenth’ of the will and as to significance to be given to the term ‘fiscal agent’ as used therein.

The Testator died a resident of Kings County, on February 14, 1924, leaving a will dated May 11, 1920, which was admitted to probate on April 11, 1924. The petitioner’s predecessor, a trust company, was appointed executor and trustee thereunder.

The portion of the will to be construed expressly states that the authority to invest shall be limited by the following: ‘Nor shall it invest in any shares or securities of which it may be promoter or underwriter, or of any corporation for which it shall be the fiscal agent.’

Published on: March 23, 2016

Court Questions the Signing of a Will

by Stephen Bilkis

Petitioner (executor) offers for probate a holographic instrument, 2–1/4 3–3/4 inches in size, written upon both sides thereof. The decedent’s signature appears directly below the dispositive provisions with no space for any other signatures below it. The first witness’s signature is on the right-hand side of the paper parallel to the edge thereof approximately at a right angle to the decedent’s signature and followed by the word ‘witness’; the other witness’s signature appears immediately thereafter at a right angle to the first witness’s signature on the side of the paper opposite decedent’s signature. This witness’s signature is inverted in relation to decedent’s signature and preceded by the word ‘witness.’ The question is whether the witnesses signed ‘at the end’ of the propounded instrument in accordance with the requirements of section 21(4) of the Decedent Estate Law.

Section 21 of the Decedent Estate Law was designed to prevent fraud and its beneficial purpose should not be thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for a fraud to have been perpetrated. Form should not be raised above substance, in order to destroy a will, and the substantial thing in this case is a paper, which reads straightforward and without interruption from the beginning to the end, and when thus read the signature is found at the end.

The court is satisfied that by the propounded paper, which is informally drawn, the decedent intended that it be his last will and testament. He was familiar with the basic requirements for the execution of a will and aware that his signature had to be witnessed. There not being sufficient space below or to the sides of decedent’s signature on the small piece of paper, the witnesses, of necessity, were forced to affix their signatures in the only spaces available on the paper. Under the circumstances indicated in this proceeding, a rigid construction of section 21 is not resorted to since there was no possibility of fraudulent additions to the instrument. The law affords the right of testamentary disposition, and a decedent’s wishes where clearly stated should not be thwarted unless clearly required. The court is further satisfied that the witnesses to this instrument signed in the only spaces available with intent to witness decedent’s last will and testament in substantial compliance with section 21 of the Decedent Estate Law.