Wills

Published on: June 23, 2015

Court Discusses Validity of Will

by Stephen Bilkis

This controversy involves the validity and effect of certain portions of the will of Mr. X, late of the city of Brooklyn, deceased, and the correctness of the directions contained in a decree of the surrogate of Kings County as to the disposition of certain moneys of his estate. Mr. X was a resident of Brooklyn and died in that city on September 5, 1895, leaving a last will and testament, which was admitted to probate on the 1st of October in the same year. His executors were and are Mrs. MH, his widow, Mr. E, and Mr. J, president of the Kings County Trust Company.

The will directs the executors to deposit in the Kings County Trust Company all the testator’s securities and moneys to constitute what he terms in his will the general fund of his estate. It bequeaths to his wife, Mrs. MH, all the testator’s personal property in his Brooklyn residence and devises to her his summer residence in the town of Lee, in Berkshire County, Mass., and all his real estate there for the period of her natural life. At the death of his wife, or sooner, if she consents, the executors are directed to sell said real property and deposit the proceeds to the credit of the general fund of the estate already mentioned. The executors are further empowered to sell any of the testator’s personal property not otherwise disposed of whenever, in their judgment, it shall be for the interest of the estate, and to deposit the avails thereof in the same general fund. Out of this general fund the executors are to make payments as follows: (1) Twelve hundred dollars a year to the testator’s wife and all taxes and expenses for necessary repairs upon his Brooklyn residence. (2) Six hundred dollars a year to the testator’s sister, Frances Wheeler, during the lifetime of the testator’s wife, and upon her death, if the said sister survives her, a sum sufficient to insure an income of $600 per annum for the remainder of her life . (3) To the testator’s niece, HB, $400 a year during the life of the testator’s wife, and upon her death, if the niece survives, a sum sufficient to insure an income of $400 per annum for the remainder of her life.

Upon the death of the wife the executors are directed to appropriate from the general fund of the estate the sum of $35,000, to be expended in the erection of a statue to Lafayette .

Published on: June 22, 2015

Court Decides the Disposition of Real Property

by Stephen Bilkis

This is an application for a construction of the will of testatrix with respect to the intended disposition of certain real property. Testatrix’ holographic will dated October 28, 1931, was admitted to probate on September 25, 1956. In paragraph ‘Third’ of the will, testatrix provided in part as follows: ‘I give to Ms. M (her daughter) In trust for Mr. T her god child and my grandson my home with all furnishings. I positively wish no encumbrance such as a mortgage or lean (sic) to be placed upon this property. This home is not to be rented or leased for any business whatever. I give to my daughter to make sure that she may have a home during her life time. At her death this property goes to her God-child.’ The remainderman, Mr. T, survived testatrix but has since died. Petitioner seeks leave to sell the real property described in the will.

In the opinion of the Court, testatrix was primarily concerned with the welfare of petitioner, her daughter. Although she used the terminology ‘in trust’ in paragraph ‘Third,’ a careful analysis of the will as a whole reveals that it does not impose the duties of a trustee upon petitioner. The words were used with a layman’s conception of their meaning.

In the absence of an express or implied direction for the payment of income by a trustee to another as beneficiary, no valid trust is created as explained in the case of In re Hasketts’ Will, (4Misc.2d 1065, 159 N.Y.S.2d 225, 227). Testatrix gave to petitioner both the actual possession of the realty and the rents and profits. Under such facts, the statute creates a legal life estate with the same incidents of tenure as if the bequest had taken such form. Such a life estate is a freehold estate giving the beneficiary the full possession, use and enjoyment of the property for the duration of her natural life.

Published on: May 26, 2015

Court Listens to Proceeding to Establish a Lost Will

by Stephen Bilkis

This is a proceeding to establish a lost will pursuant to the provisions of Section 143, Surrogate’s Court Act. The decedent died February 11, 1958. The Court is satisfied on the testimony of the subscribing witnesses that on February 4, 1958, decedent duly executed a will in accordance with the provisions of Section 21, Decedent Estate Law; that at the time of execution he was fully competent to execute a will and under no restraint.

No copy of the will was produced but the testimony of the subscribing witnesses satisfactorily established its contents. They testified that the will was on a printed form folded at the top to make four pages; that the testamentary dispositions and the nomination of the executrix and alternate executor were typed on the first page, the second or reverse side of the first page was blank and on the third page was the testimonium clause followed by the signature of the decedent. There was an attestation clause after decedent’s signature below which the subscribing witnesses had placed their signatures and addresses, Mrs. J.P.M., XXX Eastern Parkway, Brooklyn, N. Y., and Mr. GW, XX Union Street, Brooklyn, N. Y. They further testified that by the will decedent directed payment of his debts and gave the rest of his property and possessions to Mrs. DM; that if she did not survive him decedent left all his property to Mr. GM and Mrs. VM, son and daughter of said Mrs. DM. The will nominated Mrs. Dm as executrix; in the event of her death, Mr. GM and was to serve as executor and decedent directed that neither of them should be required to file a bond.

There was a further provision in the will in the nature of a request that a fence be erected around or on the side of the property wherein Mrs. DM then resided. The witness, Mrs. J.P.M. testified that on the day before decedent’s funeral she was at the home of Mrs. DM, who showed her a bundle of papers which she said were all of the decedent’s personal papers ‘and everything’. Among the papers was the instrument which the witness identified as the will which decedent had signed and to which she and Mr. GW had acted as witnesses. She recognized decedent’s signature thereon, her own signature and that of the other subscribing witnesses. Both witnesses testified that never before had they acted as witnesses to a will.

Published on: August 27, 2014

Court Decides if Attorney Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

A New York Will Lawyer said the issue in this case is whether the attorney’s fee should be granted by the court.

Published on: July 23, 2014

The Issue in this Case is Whether Attorneys Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A New York Will Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

Westchester County Probate Lawyers said the issue in this case is whether the attorney’s fee should be granted by the court.

Published on: July 10, 2014

Court Decides a Case Regarding Kinship Issues

by Stephen Bilkis

A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence, and the arguments made by the attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

Published on: July 9, 2014

Court Determines Legal Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

The issue in this case is whether the attorney’s fee should be granted by the court.

Published on: June 22, 2014

Heirs Bring Action Because they were Left Out of Mother’s Will

by Stephen Bilkis

A New York Probate Lawyer said a woman died survived by one sister and thirteen descendants of pre-deceased siblings. The deceased woman’s nephew, the Executor filed a Verified Petition to Probate a Last Will and Testament, dated April 17, 1996 in which he was the nominated Executor and in which he and his two siblings were named as the sole residuary beneficiaries. The Executor was granted Preliminary Letters Testamentary on October 29, 2009. Included in his Petition for Probate was an assertion by the decedent’s Executor that, after a diligent search and inquiry there exists no will, codicil or other testamentary instrument of the decedent later in date. The Petition also listed only the decedent’s one surviving sibling, and the Petitioner and his two sisters, omitting ten of the decedent’s distributees, all cousins of the Executor.

A New York Will Lawyer said the decedent’s one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent’s Last Will and Testament. Evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent’s property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor’s Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

Manhattan Probate Lawyers said the Executor did not concede to the validity of the July 11, 2000 will, and estate litigation commenced. The Objectants’ counsel secured affidavits from the draftsman of the later will, the attorney who oversaw its later destruction, and witnesses to the will’s execution and destruction. These parties were then deposed by the Executor’s counsel to ascertain if the decedent was mentally competent, under undue influence, duress, or if her actions were the product of fraud. No evidence of a lack of testamentary capacity was adduced at the five depositions conducted by the Executor’s counsel. However, the Executor continued to challenge the validity of the later will and claim that the decedent lacked testamentary capacity at its execution, causing a subpoena duces tecum to be issued seeking the decedent’s medical records.

Published on: June 21, 2014

Will Challenged on the Grounds of Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding where JPM Bank (JPM), co-executor, moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate the decedent’s will dated 24 June 2005 (2005 Will) due to newly discovered evidence. Several charities, the residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application; and, movants seek removal of JPM’s co-executors and appointment of JPM as sole preliminary executor.

The following are the pertinent events that took place:

On 12 September 2005, the decedent died at the age of 93 years. He was survived by two nephews, MF and SF, and the issue of a predeceased nephew. On 21 February 2006, the 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to JPM, MF and ME.

Published on: June 20, 2014

Court Decides if Former Counsel is Entitled to Legal Fees

by Stephen Bilkis

A New York Probate Lawyer said that, in this estate, there are two separate proceedings to fix legal fees. In the first, the executor, the decedent’s nephew, petitions to fix and determine the reasonable legal fee and disbursements to be awarded to his former counsel, at an amount less than the $14,200 in legal fees and $1,415.37 in disbursements billed and sought by the said counsel. The counsel cross petition for an order fixing his fees and disbursements in the billed amount. The second proceeding pursuant to SCPA 2110, commenced by him, seeks an award of $9,590, including $340 in disbursements, for legal services rendered to a former client, the decedent’s daughter-in-law. The latter opposes the petition and cross-petitions to fix and determine his reasonable attorney’s fees and disbursements contending, inter alia, that the legal fees, to the extent valid, should be borne by the estate. The parties agreed to submit the issues in each proceeding on the papers, without a hearing.

A New York Will Lawyer said that, the decedent died on August 4, 2006. Letters testamentary issued on October 30, 2006. The decedent’s daughter-in-law and the decedent’s two grandchildren, the decedent’s only distributees, each receive one-third of the residuary estate. The share of each grandchild is to be held in trust until that grandchild reaches the age of 30 years. Although the counsel’s representation of the executor in connection with this estate commenced on or about August 11, 2006 upon the filing of the petition for letters testamentary, the executor did not execute a retainer agreement, setting an hourly rate of $250, until January 14, 2007. The probate petition indicated that the estate consisted of personal property valued at $137,000 and certain Bronx realty valued at $500,000. Thereafter, the executor filed an affidavit increasing the value of the personal property to $154,360.56 and the realty to $569,000.

A Bronx Estate Administration Lawyer said that, the counsel’s legal bills reveal that as of the date of the filing of the probate petition, he was in possession of a deed of the Bronx realty which was executed by the decedent on May 21, 2000, over six years prior to her death. The deed conveyed the realty to the decedent’s daughter-in-law while reserving to the decedent a life estate. Upon learning of the decedent’s death, the attorney who prepared and oversaw the execution of the deed provided it to him, who included the value of the realty in the probate petition. Following the admission of the will to probate, the executor and the counsel began collecting assets; in particular, they sought a date of death appraisal of the Bronx realty and personal property contained therein, and contacted brokers in order to sell the realty. The counsel’s bill reflects his involvement in meetings at the Bronx realty with the executor and appraisers, in obtaining brokers and receiving proposals from interested buyers and in drafting contracts of sale, although no closing ever occurred. During this time, it appears that disputes arose between the executor and the decedent’s daughter-in-law or her children concerning the sale of certain personal property, and the sales price of the Bronx realty. In addition, when the decedent’s granddaughter reached the age of 30, she requested through her mother a $10,000 distribution and, in response, the executor sent $6,000 instead of the $10,000 requested. These events prompted a January 3, 2008 letter from the counsel to the executor stating, inter alia, that he concurred with her recent rejection of an offer on the Bronx realty, and the executor should issue a check in the requested amount to the granddaughter and provide him and her with an accounting and cancelled checks for all expenses.