Wills

Published on: July 18, 2015

Court Hears Motion by Executrix Requesting Surrogate to Fix Estate Tax

by Stephen Bilkis

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

The papers allege that the executrix made a motion to fix the tax returnable on March 16, 1972. Although the State Tax Commission (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 (Tax Law § 249–w).

The Commission has appeared but has made no response, formal or informal, to the relief requested by the taxpayer. For the nature of the Commission’s objections, the Court must rely on the information imparted to it by the moving papers. It is there stated that the taxpayer was informed by the Commission that its decision in this and other cases is awaiting determination of pending appeals on related issues.

Published on: July 15, 2015

Probate Court Discusses Recent Bequests of Stock

by Stephen Bilkis

This is the first New York decision to consider the effect of the recent AT & T divestiture on a bequest of AT & T stock. This is a proceeding brought by GB, co-administratrix c.t.a., for a construction of article “SECOND” of the testatrix’s last will and testament. The testatrix died on September 13, 1985 at the approximate age of 89. The last will and testament of the testatrix, dated February 6, 1982 and a codicil thereto, dated September 27, 1984, were admitted to probate by this court on December 2, 1986. Letters of administration c.t.a. were issued to the petitioner and LP, the respondent.

Under the aforementioned codicil, the testatrix deleted CD as a residuary legatee, she having died, and in her place named LP, the respondent who was a friend of the testatrix. This replacement was the only change made, and in all other respects, the will was approved, ratified and confirmed.

The value of the testatrix’s gross estate is approximately $600,000 comprised primarily of stocks, valued at approximately $350,000.00, a house and property, valued between $175,000 to $225,000, jewelry and miscellaneous items, valued at approximately $9,500.00 and two bank accounts, in the amount of approximately $15,000. The testatrix’s closest relatives are four first cousins, once removed, of which only one receives a bequest under the will.

Published on: July 14, 2015

Estate Alleges Undue Influence in Will Signing

by Stephen Bilkis

An RN (Decedent) died on January 22, 2008 survived by a son, EN, a daughter, CS, and six grandchildren. The Decedent’s Last Will and Testament, dated June 27, 2000 was admitted to probate, and Letters Testamentary were issued to his two children on March 3, 2008. The Will left each of the Decedent’s six grandchildren $25,000.00, and named his two children equal residuary beneficiaries. Due to the Decedent’s Alzheimer’s disease and advanced dementia that ultimately caused his death, CS was appointed Guardian of the person and property pursuant to Mental Hygiene Law Article 81 in New York State Supreme Court in the Fall of 2007. The Decedent had been a successful business man during his life, operating a sole proprietorship known as RN, Inc. until May 1, 2006. SS was his long time secretary and bookkeeper. Mrs. SS retired from RN, Inc. on June 25, 2005, but continued to assist the Decedent with business and personal affairs.

On February 26, 2009, the Estate commenced a discovery proceeding against Mrs. SS alleging that she used her relationship as the Decedent’s long time companion and secretary to unduly influence a series of pre-death non-probate transfers and business decisions in her favor, contrary to the Decedent’s estate plan. On December 18, 2009, counsel for Mrs. SS filed an Answer. The parties thereafter conducted discovery. After a number of court conferences, the parties ultimately failed to reach a settlement, and a hearing pursuant to SCPA 2103 and 2104 was held in May, 2011 relative to Mrs. SS’s undue influence upon the Decedent, and the Decedent’s capacity to make the non-probate transfers and decisions in dispute.

The disputed transfers occurred between 2005 and 2008, and consisted of the following: loans made to an individual named JT which were assigned to Mrs. SS pursuant to a Memorandum of Understanding dated July 1, 2005; loans to JT which were conditionally assigned to Mrs. SS, CS and EN by Agreement and Memorandum of Understanding dated May 11, 2006; various corporate debts assigned to Mrs. SS commencing May 1, 2006; accounts and an annuity naming Mrs. SS a 1/3 transfer-on-death beneficiary along with the Decedent’s two children; a Prudential Whole Life Insurance Policy for which Mrs. SS was made the designated beneficiary as a result of a corporate resolution signed by Mrs. SS as Secretary of the Decedent’s corporation on January 7, 2008; corporate checks made payable to cash signed by Mrs. SS; and bank accounts of the Decedent held jointly with Mrs. SS. It is alleged that the value of the disputed transactions had a value of approximately $195,000.00 on the date of the Decedent’s death.

Published on: July 13, 2015

Law Firm Brings Action for Charging Liens

by Stephen Bilkis

The law firm of RA and Moss (the RA Firm) and the Law Offices of CA PC (CA) (together, the Firms) seek to determine and enforce charging liens pursuant to section 475 of the Judiciary Law. The liens would secure fees claimed by the Firms for legal services to WK under a retainer agreement dated July 10, 2006 (the 2006 Retainer). The Firms represented WK in a decade-long dispute among several WK family members, involving various real estate holdings and family trusts. The dispute had been punctuated by at least two abortive settlements, the latter one in 2004. On January 3, 2008, however, the WK’s internecine battles ended in a global settlement placed on the record in open court and then further memorialized in a written stipulation implemented by a closing on August 27-29, 2008. The liens now claimed by the Firms relate to William’s share of the proceeds of that settlement.

Discovery having concluded, the Firms and WK have cross-moved for partial summary judgment. The issues raised on these motions involve the validity of the 2006 Retainer, its allegedly wrongful procurement, and, if it is valid, the meaning of several of its terms and the extent to which William’s obligations under it are subject to conditions that have not been satisfied. The Firms acknowledge that the sums to which they are entitled for work resulting in the 2008 settlement cannot be fully determined without a hearing. WK for his part asserts that a hearing is needed to determine the Firms’ fees for hourly services in the litigation preceding that settlement.

In dissension among three generations of WK over the considerable family wealth is at the root of the present proceeding. In the first generation were Harry, who died in March 1983, and his wife Ruth, who died in November 2000. In the second generation were the couple’s two children, Robert, who died in October 1996 and Nancy, who is still living.

Published on: July 12, 2015

Court Listens to Construction Proceeding Regarding Tax Returns

by Stephen Bilkis

The executors have instituted this construction proceeding, prior to the filing of Federal and New York estate tax returns, to determine the effect of a tax exoneration clause, paragraph second and request a reformation or interpretation of paragraph eleventh, which creates a pre 1969 residuary, multiple, split-income, charitable remainder trust so as to qualify it for a charitable deduction under U.S.Code, tit. 26, § 2055 as amended by the Tax Reform Act of 1969 (TRA).

The testator died on September 9, 1973, age 92, leaving a daughter, age 64, as his sole distributee, and a granddaughter and three great-grandsons. His will, executed on December 19, 1967 was admitted to probate and letters testamentary issued to petitioners on October 1, 1973.

Paragraph second of the will provides: I direct that all my funeral, administration expenses, just debts, and all estate and inheritance or succession taxes be paid as soon after my death as may be practicable. After several outright and in trust cash bequests to his daughter, granddaughter, great-grandsons and friends totalling $38,050, testator gave his residuary estate to his trustees in trust.

Published on: July 10, 2015

Probate Court Rules on Property Dispute

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.

The 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, Mr. BNFCRY, who was also named sole executrix with the further proviso as follows: ‘after BNFCRY 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’s death Mr. BNFCRY took possession of real and personal property of testatrix and by conveyances, transfers, assignments, sales, and alienations, by said BNFCRY, 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 BNFCRY took a fee or a life estate with or without power of alienation or disposition.

Published on: July 9, 2015

Petitioner Appeals a Surrogate Court Decree

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 an immediate relative and granted those branches of the motion of the objectant, Mr. HP, 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 Mr. HP.

In this Court now ordered that the decree is reversed insofar as appealed from and the matter is remitted to the Surrogate’s Court for an evidentiary hearing, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the petitioner (appellant herein) from service as executrix, and to issue letters of administration to Mr. HP.

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, mere friction or hostility between such person and a beneficiary is not sufficient grounds for removal.

Published on: July 8, 2015

Plaintiff Brings an Action to Recover Damages

by Stephen Bilkis

In an action to recover damages for personal injuries and for wrongful death, the defendant X. Co. 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. This Court now ORDERED that the order is affirmed insofar as appealed from, with costs.

The decedent Mr. A.B initially commenced this action for personal injuries against the defendant X. Co., claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent’s daughter, Ms. M, 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 Ms. M the executrix of her father’s estate and probate his will since he was a domiciliary of Florida at the time of his death.

It is explained pursuant to SCPA 204, when the jurisdiction of a court is called into question in a collateral proceeding, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established by an allegation of the jursidictional facts contained in a verified pleading. Contrary to Standard’s assertion, there were no fraudulent statements in the petition. While the petition alleged that the decedent was a domiciliary of Kings County, it also indicated that decedent had died in a Florida nursing home. In addition, annexed to the petition were papers intended to inform the Surrogate of the decedent’s connection with Florida. Thus, the Surrogate was supplied with all of the relevant facts, and in the absence of fraud, the defendant has no standing in a collateral proceeding to have the determination overturned, this was further illustrated in the case of Stolz v. New York (Cent. R.R. Co., 7 N.Y.2d 269, 196 N.Y.S.2d 969, 164 N.E.2d 849).

Published on: July 5, 2015

Probate Court Called Upon to Interpret Will

by Stephen Bilkis

Mr. LM, a resident of Burlington, Vt., died in August, 1870, leaving a last will dated October 3, 1868, and a codicil thereto executed October 28, 1868, which will and codicil were admitted to probate in the state of Vermont on September 16, 1870, and letters testamentary thereon issued to Mrs. ALM, his widow, who was named as executrix of the will.

The testator left him surviving his widow, ALM, three sons, WM, GM and CM, and one daughter, AM, who were his sole heirs at law and next of kin. GM, one of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; Mrs. ALM, the widow, died September 22, 1904, a little over four years after the death of her son GM, 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 the interest of her father, GM, one of the remaindermen, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, GM having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, GM, 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.

The provisions of the will of Mr. LM material to be considered here are as follows:

Published on: June 29, 2015

Petitioner Asks Court to Appoint an Appraiser

by Stephen Bilkis

The application by LK, as executrix of the last will and testament of Mr. DK, deceased, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. An order of the surrogate of Kings County, confirming the report of the appraiser, having been affirmed by an order of the appellate division of the Supreme Court, the applicant now appeals.

This is an appeal from an order of the appellate division of the Supreme Court in the Second department, affirming an order of the surrogate of Kings County, which confirmed the report of an appraiser appointed to fix the transfer tax upon the property of the estate of Mr. DK, deceased. Mr. DK died in the city of Brooklyn, June 29, 1895, leaving a last will and testament, which was admitted to probate on the 10th of the following September. LK, the appellant, alone qualified as executrix thereof. She subsequently petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.

The will of the decedent, so far as material to the questions involved on this appeal, is as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situate, unto my three sisters, M, A, and L.’ Mary died prior to the death of the testator. The appraiser fixed the tax upon the theory that the testator died intestate as to one-third of his estate, by reason of the predecease of M; that A and L each took one-third of M’s share as next of kin; and that the remaining one-third passed to nine nephews and nieces of the decedent, as their share of the estate which was undisposed of by the will. The appraiser filed his report with the surrogate December 10, 1895, and on the same day the surrogate made an order confirming it, and assessing the tax at the amount mentioned therein. From that order an appeal was taken to the surrogate, and the former order and report of the appraiser were confirmed, and an appeal was taken to the appellate division of the Supreme Court, where the latter order was affirmed.