Wills

Published on: January 22, 2016

Court Hears Proceeding to Declare Living Trust Invalid

by Stephen Bilkis

There are three proceedings pending in the estate of the decedent: (1) a miscellaneous proceeding to declare the decedent Living Trust dated March 19, 2001 invalid; (2) a proceeding to probate an instrument dated March 19, 2001 as the decedent’s last will and testament; and (3) a proceeding by the trustee of the decedent Living Trust dated March 19, 2001, to judicially settle his account for the period from March 19, 2001 to May 9, 2007. On July 1, 2010, the court appointed a guardian ad litem for one of the decedent’s daughters, in all three proceedings.

The decedent died on May 9, 2007, survived by four distributees: two daughters; a son; and a granddaughter, the only child of the decedent’s predeceased son. The propounded will pours over to the living trust. The living trust provides only for the son, specifically omits the two daughters, and does not mention the granddaughter.

The guardian ad litem has filed a preliminary report in which he details his findings to date and, based upon them, recommends that he continue to represent his ward’s interests in all three proceedings. The guardian ad litem reports that one of the daughters has alleged that the decedent’s son exerted undue influence and fraud upon the decedent at a time when he was physically ill and depressed. The guardian ad litem states that, based on his investigation, he deems it appropriate to participate in the SCPA 1404 examinations in the probate proceeding and to continue to represent his ward’s interests in all three proceedings. The court agrees with his conclusions.

Published on: January 20, 2016

Petitoner Moves for Judgment

by Stephen Bilkis

The defendant moves for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action. The complaint alleges that plaintiffs are sons of the decedent, there is no indication that they are the only children, and that decedent prior to her death employed the defendant, an attorney, to prepare a will for her execution. It is claimed that decedent directed the defendant to provide for a residuary clause naming plaintiffs as legatees thereof. The decedent could neither read nor write English and she executed the will relying, it is claimed, on defendant’s representation that the residuary clause had been prepared as directed whereas, in fact, the residuary clause was omitted from the will. Although decedent has been dead since January 30, 1961, there is no allegation that the purported will has been admitted to or offered for probate. No copy of the purported will is attached to the complaint nor are any of its provisions pleaded so that the court may know what provisions, if any, were made for the plaintiffs in the purported will. No allegation is made as to the identity of the decedent’s heirs-at-law who would succeed to the residuary estate in the absence of a provision for the disposition thereof in the will.

The issue in this case is whether defendant’s motion for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action should be granted.

The plaintiffs urge the sufficiency of their complaint on the basis of two California cases. They claim that Goldberg v. Bosworth, 29 Misc.2d 1057, 215 N.Y.S.2d 849 (Special Term, Supreme Court, Kings County, 1961) follows the California decisions. In the Biakanja case, a will was denied probate because the defendant who drew it, a notary public, not an attorney, notarized the will instead of having it subscribed by attesting witnesses. The plaintiff was the sole legatee named in the will and by reason of the denial of probate resulting solely from defendant’s action, he received one-eighth of the estate instead of all of it. The defendant was held liable. In the Lucas case, the defendant attorney in attempting to create a testamentary trust violated the rule against perpetuities and the trust was held invalid. The beneficiaries thereof brought suit. The court sustained the complaint on the theory that the beneficiaries, although not in privity with the defendant attorney, were the primary objects of testator’s bounty and thus the express beneficiaries of the agreement between the testator and defendant attorney for the execution of the will.

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 16, 2016

Petitioner Brings Hearing to Compel the Production of Wills

by Stephen Bilkis

In these two proceedings to compel the production of the wills of the decedent, the children of the decedent, who are also the stepchildren 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 testators. 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 testator’s 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.

The issue in this case is whether the NYPD can be compelled to produce the documents in their possession purporting to be the wills of the testators.

Published on: January 10, 2016

Petitioner Brings Photocopy of Last Will and Testament to Hearing

by Stephen Bilkis

This is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated March 2, 1981, the original of which cannot be located; the decedent died April 4, 1981. The petitioner is the decedent’s daughter-in-law, the surviving spouse of the decedent’s post-deceased son. At the time of her death in 1981, the decedent’s only distributees were her son and her estranged spouse. She resided in a house owned by her estranged spouse. The decedent’s only asset was a home on the same block which was then occupied by her son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the decedent’s son advised her that the decedent had left the residence in which they were residing to him. She also claims that she was not aware that any steps needed to be taken regarding the property until after the decedent’s death in April 2005, when she attempted to place the house on the market for sale.

A Kings Estate Administration Lawyer said that, a waiver and consent has been filed by the executor of the estate of the estranged spouse, decedent’s estranged spouse who post-deceased the decedent. A renunciation and waiver and consent have also been filed by the son of petitioner and decedent’s son.

The issue in this case is whether this is an uncontested proceeding to probate a copy of the last will and testament of the decedent should prosper.

Published on: January 8, 2016

Two Children Seek to Have Status Changed Pursuant to Statute EPTL 5-3-2

by Stephen Bilkis

In this probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute (EPTL 5-3.2) determined. In a prior decision (Dec. No. 80, Feb. 7, 2008), the court ruled that any question regarding a party’s status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings. Rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the movant’s allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

The decedent died on January 13, 2007, survived by eleven children; three from a first marriage, four from a second marriage and four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executrix, who inherits the entire estate valued at several million dollars.

EPTL 5-3.2 creates a rule of presumed intent for a testator who may have inadvertently omitted a child born after he executed his will. If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovoked for by some settlement, the after-born shares in the gift to existing children. Case law has granted non-marital after-born children the same rights as marital after-born children if they can establish their inheritance rights under EPTL 4-1.2. Since the Wilkins case was decided, the after-born statute has been amended to address the rights of after-born non-marital children (L. 2007 ch. 423, eff. Aug 1, 2007). The amendment provides: “For purposes of this section, a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter.”

Published on: January 6, 2016

Court Interprets Will and Codicil That Contradict Each Other

by Stephen Bilkis

The Appellate Division has affirmed a decree 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 legatee under Art. IV herein, then the share of such decedent shall in such event revert to her the said Inez Hoffman. And in case either said nieces should die without issue subsequently to the death of their Aunt they 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 Inez 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: January 4, 2016

Court Decides Issue Regarding an Appeal Technicality

by Stephen Bilkis

This is an appeal from Supreme Court, general term, second department. Proceedings for the probate of the will of the deceased. The will was propounded by testator’s widow, and contested by respondents 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 decrees, and was not intended to regulate the practice in bringing appeals, except to require that, when the appeal is from a decree rendered upon a trial of an issue of fact, a case must be made and settled, as on an appeal in an action. That was done in this case. The question of undue influence in procuring the will of 1887 was the issue litigated, and upon which the determination of the surrogate proceeded, and a large volume of testimony was presented to the general term, and that court, on reviewing the facts, reversed the decree, and ordered issues. The notice of appeal informed the respondents that the entire decree was challenged, and the case prepared exhibited both the questions of fact and law involved. The rule that in an action tried by a jury a motion for a new trial is necessary to enable the general term to review the facts is based upon reasons wholly inapplicable to the case of a trial before a surrogate.

Published on: January 2, 2016

Excutors Bring Final Accounting to Probate Court

by Stephen Bilkis

In a proceeding for the judicial settlement of the final account of the preliminary executors and the executors of the will of the deceased, for the period from November 1, 1995, through May 28, 1999, the petitioner appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Kings County, dated February 9, 2004, as denied his motion for summary judgment fixing his compensation as preliminary executor in the sum of $2,563,803.81 and granted that branch of the cross motion of Long Island College Hospital, Polytechnic University, Chemical Heritage Foundation, and the Attorney General which was for summary judgment limiting his compensation for all services as an executor of the decedent’s will, whether performed as a preliminary executor or as an executor, to the sum of $400,000.

The petitioners, were named co-executors in article fourteen of the decedent’s will, which provides: “The commissions payable to my executors shall be according to the New York statute then in effect, but shall in no event exceed the sum of $800,000, which amount shall be divided between my executors, if more than one shall be serving, as they may agree, recognizing the extent of the duties and the relative difficulty of the duties assumed by each or done by each in his respective tenure in office, and the remaining duties and their extent remaining after his tenure, and I direct that each executor agree in writing to that provision as a condition of qualifying.” In the event either or both nominated executors failed to qualify, nonparty Fiduciary Trust Company International of New York was named as an alternate executor. Following the death of the decedent, petitioners offered the will for probate on November 3, 1995. On the same day, they filed a petition for preliminary letters testamentary.

Preliminary letters testamentary were issued on November 20, 1995. The will was admitted to probate on July 8, 1996. The preliminary letters were vacated, and letters testamentary were issued to petitioners. On November 4, 1996, petitioner filed a renunciation of compensation provided under the will pursuant to SCPA 2307 (5). The other petitioner did not renounce the provision limiting his compensation as executor. On November 25, 1996, the executors, petitioners filed a successful ex parte petition for advance payment of commissions pursuant to SCPA 2311, requesting that each executor receive $200,000 on account of their commission. In his supporting affidavit, petitioner purported to preserve his right to statutory commissions under SCPA 2307 by reason of his renunciation. In July 1999, when the executors filed an account of their administration of the estate and petitioned for the settlement of their account, petitioner requested that he be awarded full statutory commissions of $5,323,112, less the $200,000 advance. Wagner only requested that the court award him $400,000 in compensation as provided in the will, of which $200,000 had been paid. The residuary beneficiaries of the estate, several charitable entities, including Long Island College Hospital, Polytechnic University, and the Chemical Heritage Foundation, as well as the Attorney General, statutory representative of charitable beneficiaries (hereinafter collectively the Charities), objected to the accounting, inter alia, on the ground that petitioner was not entitled to statutory commissions. The Charities contended that the will limited compensation to the sum of $800,000, petitioner was required to either accept the compensation cap or not serve at all, and because he petitioned for preliminary letters testamentary in which he swore that he was entitled to letters testamentary immediately upon the probate of the will, he satisfied the condition precedent to qualifying by implicitly accepting the compensation provided in the will, notwithstanding his renunciation.

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.