Wills

Published on: February 14, 2014

Court Rules on Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is an accounting proceeding in which the court is asked to determine whether assets of the estate located in New York should be distributed directly to legatees or whether they should be transmitted to the California administrator for distribution there. A New York Estate Lawyer said that, the deceased until three years prior to his death had been a New York resident. He had prepared a will here naming the Chase Manhattan Bank executor. He then moved to California, purchased real estate, established his residence and executed three codicils to the will. The codicils disposed of his California realty, enlarged the legacy of a niece, a California resident, dropped one of the named executors but retained the Chase Manhattan Bank. Most of the estate is here in New York.

A New York Estate Will Lawyer said that, after decedent’s death, the executor petitioned for the probate of the will and codicils in this jurisdiction. A contest ensued which was subsequently settled and the objections were withdrawn. Letters testamentary were then issued to the Chase Manhattan Bank. Shortly thereafter, the decedent’s niece, a legatee, applied to the Los Angeles Probate Court for letters of administration. That court granted letters to the Public Administrator of Los Angeles.

A Nassau Probate Lawyer said that, although the letters issued to the Chase Manhattan Bank were in form letters of original probate, it would appear that in reality the deceased being a resident of California the domiciliary administration is there and the administration here is therefore in its nature ancillary. The Public Administrator of Los Angeles as administrator c.t.a. has objected to the proposal of the executor to distribute the assets in its possession to the legatees directly rather than to remit them to the domiciliary representative in California for distribution by him.

Published on: February 13, 2014

The issue in this case is whether the restrictive provision that was placed in the probate decree should be removed.

by Stephen Bilkis

A New York Probate Lawyer said that, the decree admitting this testator’s will to probate restrained the executor from paying or satisfying any legacy or distributive share until further order of the Surrogate. The executor now moves to have such restriction removed. The facts essential to a decision are not in dispute. At the time of his death on January 2, 1964 the testator was an American citizen domiciled in Switzerland. His will, which was executed in New York on November 6, 1961, attempted to exercise a power of appointment granted to this testator by the will of his mother and bequeathed his entire residuary estate to his second wife. Article TENTH of the will reads as follows: ‘I direct that this will be submitted for probate in New York County, State of New York, United States of America, and that the provisions of this will shall be governed by the laws of the State of New York in accordance with section 47 of the New York Decedent Estate Law.’

A New York Will Lawyer said that, the testator’s first wife, as the general guardian of two infant children, interposed objections in the probate proceeding. One objection concerned the effectiveness of the quoted text of the will since it was the contention of the general guardian that the testator’s property must be disposed of in conformity with Swiss law under which the infant children would be entitled to shares of the estate as forced heirs of the testator. This objection was not ruled upon in the probate proceeding but, because of the objection, the restrictive provision was placed in the probate decree.

The issue in this case is whether the restrictive provision that was placed in the probate decree should be removed.

Published on: February 12, 2014

Court Decides Issue of Jurisdiction Between U.S. and British Honduras

by Stephen Bilkis

A New York Probate Lawyer said that, the Government of British Honduras, appearing specially, petitioned this court for permission to appear specially in the contested probate proceeding for the purpose of taking appropriate steps to assert its rights in that proceeding. It alleges that the decedent was domiciled in British Honduras at the time of death, and that the Government has been cited as a party to the probate proceeding in British Honduras ‘as an interested party on the ground that if the decedent were found to have died intestate, then his estate would belong to the Crown as bona vacantia (abandoned property)’. The Government of British Honduras asserts that it has the right to intervene in the probate proceeding in New York because, under the law of the decedent’s domicile, all of the decedent’s property would, in the event of intestacy, vest in the Crown as statutory distributee and heir.

A New York Will Lawyer said that, the petitioner has in effect been granted the right to appear specially and to move to assert its rights, because, the other parties to the proceedings having challenged the facts upon which the petition rested, the court placed the matter on its calendar for hearing. The Government of British Honduras appeared and was given full opportunity to present its claim of interest in this estate.

Long Island Probate Lawyers said the issue in this case is whether the Government of British Honduras has the right to intervene in the probate proceeding in New York because, under the law of the decedent’s domicile, all of the decedent’s property would, in the event of intestacy, vest in the Crown as statutory distributee and heir.

Published on: February 11, 2014

Court Looks at Validity of Will Pursuant to Sec. 22a of Decedent Estate Law

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, a resident of this county, died in Great Barrington, Massachusetts on July 27, 1959. An instrument executed by her in Massachusetts has been submitted for probate. The facts regarding its execution are undisputed. The instrument was written, upon instructions of the decedent, by a friend of forty years standing and signed by the decedent on April 13, 1959 but it was not witnessed. Subsequently and on July 20, 1959 certain additions were written in by another person at the request of the decedent. These consist of a legacy of $1,000 and a direction that all expenses are paid first. These additions appear below the signature of the decedent. On the same day three persons signed as witnesses after the decedent had acknowledged her signature and declared the paper to be her will. Their signatures appear below the aforementioned additions.

A New York Will Lawyer said that, it is alleged in the petition that decedent’s estate consists solely of personal property and that she left no living relatives. The special guardian for unknown distributees has filed objections to the probate of the instrument upon the ground that it was not signed by the decedent at the end thereof. The proponent has moved to strike out the objections and to admit the propounded instrument to probate.

A New York Will Lawyer said the issue in this case is whether the estate of the decedent should be admitted to probate.

Published on: February 11, 2014

Court Decides if Widow Can Seek and Order Under Sec 20 of Surrogates Court Act

by Stephen Bilkis

A New York Probate Lawyer said that, the petitioner, asserting a status as the widow of the deceased, seeks an order under section 20 of the Surrogate’s Court Act re-opening the decree admitting the will to probate. In support of her application she relies upon the omission of the respondent executors to cite her in the earlier proceeding. She admits it to be her purpose, in the event she is successful on this application, to relieve herself of her default in serving a notice of election to take against the will which was admitted to probate on September 24, 1952, an event of which she has been shown to have been fully cognizant though at the time she made no attempt to intervene in the proceeding.

A New York Estate Litigation Lawyer said that, the issue has been joined by the filing of an answer in which it is alleged that the petitioner and the deceased were never married and that she has voluntarily relinquished whatever rights she might have had in his estate by an instrument executed by her as a release together with a written agreement of settlement which terminated an action she had instituted against the executors in the Supreme Court for monies loaned to the deceased, for work, labor and services rendered, and for breach of an agreement allegedly requiring the respondents ‘to provide for plaintiff’s good care and support.’ She was represented in that action and in the negotiations for settlement by competent counsel of her own selection.

A New York Will Lawyer said that, the executors, pleading the agreement and release in bar, have moved for summary judgment dismissing the petition on the merits. The petitioner had previously filed her reply in which she had challenged the effectiveness of the instruments upon which the respondents rely. This being the state of the pleadings the court is called upon on this motion to decide as a matter of law whether the release and agreement would be sufficient in content and context to bar the petitioner from asserting rights to which she would be entitled were she in fact the widow of the deceased and if so, to determine whether an issue of fact exists in connection with the question as to whether the documents are nevertheless incapable of producing that result because of the circumstances surrounding their execution and exchange.

Published on: February 10, 2014

Petitioner Seeks Summary Judgment on Turnover Petition

by Stephen Bilkis

A New York Probate Lawyer said that, the administrator of the estate of the decedent, and petitioner in a turnover proceeding against respondent Companies, and law firm counsel to the Public Administrator of the County of New York, now seeks summary judgment and treble damages. Respondent cross-moves for summary judgment, seeking dismissal of the turnover petition and revocation of petitioner’s letters of estate administration.

A New York Will Lawyer said that, the decedent, a domiciliary of Brazil, died February 11, 2000, survived by no known distributee. On June 27, 2002, the administrator of the estate proffered decedent’s one-page handwritten will dated July 25, 1998. The will bequeaths decedent’s “holdings at the Citibank in New York” to him. During the pendency of the administrator’s probate proceeding, respondent company obtained probate in Brazil of a later will, dated March 12, 1999. On March 11, 2003, the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court appointed respondent the executor of decedent’s March 12, 1999 will. Article FIRST (of a certified translation of a court certified copy) of that later will provides: “That this was the only and exclusive testament, and any previous act was hereby revoked.”

Westchester County Probate Lawyers said that, thereafter, CIS, presented with certified translations of: (1) decedent’s death certificate; (2) the March 11, 2003 certificate issued by the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court to respondent, as executor of decedent’s March 12, 1999 will; and (3) the March 12, 1999 will itself, transferred decedent’s investment account, which the administrator estimates at $70,000 to the respondent, as executor of decedent’s will.

Published on: January 5, 2014

Case Issue is Whether Court Erred in Denying Probate of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, the decree denying probate to the propounded instrument reserved for determination by supplemental decree all applications for costs, allowances, and fees. The attorney for petitioner who claims to be the sole statutory distributee of the decedent, asks the court to fix his reasonable compensation and costs and to direct payment from the general estate. The attorney did not proceed in the manner required by section 231-a, Surrogate’s Court Act, and hence his application must be based upon section 278. He is not entitled to costs or an allowance under that section. Even if he had proceeded under section 231-a, he would not be entitled to have his fee paid out of the general estate for he rendered no services of benefit to the estate. His services were solely for the benefit of his individual client.

A New York Will Lawyer said that, the position of the client was, as the attorney states, as anomalous one. A 1918 will has been admitted to probate in British Honduras ‘until a later Will be found’. A 1955 instrument was offered for probate here as a lost will. It was to the interest of the alleged distributee that the 1955 instrument be proved to have been duly executed (thus revoking the 1918 will), but that it be denied probate on the ground that it was not in existence at the time of the decedent’s death. The attorney was thus partly on one side in the contested probate proceeding and partly on the other side. He accordingly filed no pleading and took no active part in the contest. Before submission of the case to the jury he made motions appropriate to his client’s interests. He was otherwise quiescent, hopeful that the contending factions would destroy each other. The verdict of the jury was against the proponent on the question of the making of the will.

A Manhattan Probate Lawyers said that, the attorney’s present contention that he represents a party who has succeeded in the contest is contrary to the record herein. He attempted to serve only his own client’s interests, he rendered no services of benefit to the estate and he was not successful insofar as his client’s cause is concerned. There is no basis for allowing him costs, compensation or allowance out of this estate. The attorney for the proponent in the probate proceeding request an allowance for their services. In prohibiting an award of costs to an unsuccessful contestant in a probate proceeding, section 278 explicitly excepts from that prohibition one ‘named as an executor in a paper propounded by him in good faith’, and it further affirmatively provides that ‘where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.’

Published on: January 4, 2014

Court Dicusses Trust with PourOver Will for Infant

by Stephen Bilkis

New York Probate Lawyers said that, the report of the guardian ad litem for infant remainder men of the residuary trusts makes certain recommendations, some of which are in reality objections to the account.

A New York Estate Administration Lawyer said that, a trust which the decedent had created provided for a pour-over to the decedent’s estate. The decedent died on June 8, 1968. Letters were issued to three executors, two of whom were also trustees under the deed of trust. Understandably, some time was required for the trustees to prepare their account and transfer property to the executors. The shares of stock and some bonds were transferred on March 28, 1969; United States bonds, on May 15, 1969 and most of the other bonds, on September 30, 1968. The guardian points out that the trustees computed their paying commissions on values as of the dates of transfer to the executors, but the executors herein computed their receiving commissions on valuations as of the date of the decedent’s death, which were more than two hundred thousand dollars greater than the values on the dates the funds were received.

The issue in this case is whether objections on the account of the estate should be granted.

Published on: January 4, 2014

Court Discusses Powers of Executor Regarding Prior Will

by Stephen Bilkis

A New York Probate Lawyer said that, the proponent of the will of the decedent seeks a protective order with respect to a notice to examine under SCPA 1404. The decedent died on July 9, 1995, survived by her daughter, as sole distributee. She was also survived by her granddaughter,. Under the propounded will, dated October 3, 1994, the decedent directed that her entire estate, valued at approximately $250,000, be pored over into a living trust created on the same date. Pursuant to the terms of such trust (which was in effect at her death), the trust property, after payment of $30,000 to a named beneficiary, is to be distributed 40 per cent to her daughter, and 60 per cent to her granddaughter.

A New York Will Lawyer said that, the will was offered for probate by the granddaughter, the named executrix, who is also the trustee of the living trust. It is noted that in an earlier will, dated July 30, 1984, the decedent had left one half of her estate to her husband (the named executor) and the other half equally to her daughter and granddaughter. On March 19, 1991, after her husband’s death, the decedent executed a codicil in which she divided her estate administration equally between her daughter and granddaughter and named the attorney-draftsman as executor.

A Brooklyn Probate Lawyers said that, the attorney, duly made a party to the probate proceeding as executor named in a prior instrument filed with the court (SCPA 1403[1][d], served a notice to examine the draftsman, the attesting witnesses and the proponent of the propounded will. The proponent, however, requests a protective order. At issue is whether and to what extent respondent is entitled to conduct examinations under SCPA 1404.

Published on: January 3, 2014

Creditor Requests for Ancillary Letters of Administration

by Stephen Bilkis

A New York Probate Lawyer said that, a person claiming to be a creditor of the decedent applies for the issuance to him of ancillary letters of administration. It is conceded that the decedent was domiciled in Ohio, and that letters of administration were issued by a competent tribunal of that State to another person. The petition alleges that the decedent left personal property in New York consisting of ‘Royalty contracts of United Music Corporation.’ The Ohio administrator submitted an answer on September 18, 1962, alleging that there are no assets of the decedent within the State of New York. He does admit the contract between the decedent and United Music Corporation, ‘a publisher in the County of New York’, but he makes the somewhat ambiguous allegation that ‘no revenue or income’ was at that moment due the estate except ‘some writers’ royalties.’ He also asserts that there is no need for ancillary administration because, in his status as domiciliary administrator, he has been collecting the royalties due under that contract, and has experienced no difficulty in the prompt collection of them. He denied knowledge or information as to the validity of the petitioner’s claim, and he requested that if ancillary letters are to be issued, they be issued to him. The Public Administrator asserted that his right to letters were superior to that of the petitioner and requested the issuance of letters to him. During the proceeding the petitioner conceded the superior right of the Public Administrator to letters. The matter was placed upon the calendar for hearing of the contested issue as to the existence of any asset in New York County.

A New York Will Lawyer said that, after the matter was placed upon the hearing calendar, the Ohio administrator attempted to avoid meeting that issue by going through a form of sale of all the decedent’s rights under the contract. In October, 1962 he applied to the Ohio court for permission to sell all of the decedent’s interest in the musical composition ‘Huckle Buck’, which is the composition published by United Music Corporation, and he obtained judicial permission to sell it ‘at the best price obtainable’. No mention was made in that application of the proceedings in this court or of the petitioner’s claim. On October 31, 1962, the Ohio administrator signed an instrument which purports to transfer to a third person all of the decedent’s interest in the composition, the copyright thereto, and any extension and renewal. The consideration recited in that instrument is $2,500 and payment of that sum to the Ohio administrator was proven.

A Nassau County Probate Lawyer said that, an officer of the United Music Corporation was called as a witness by petitioner. It appears that the decedent had assigned to that corporation all of his interest in the composition, and the corporation agreed to pay specified royalties. Royalties were regularly paid during the decedent’s lifetime, and up to the end of June 1961. In August, 1961, the sum of $2,137.68 was paid to the estate, presumably for the period ending June 30th. The witness testified that royalties were being held by the corporation and that for the period July 1, 1961 to December 31, 1962, the accrued royalties amounted to $2,729.73. There was a lack of agreement among counsel as to how long the copyright still has to run, and definitive proof on that question was not submitted. It appears, however, that the copyright is still in existence. We do not have proof of the precise amount of accrued royalties on October 31, 1962. That figure was always obtainable by the administrator from United Music. The only figure near that date is the $2,729.73 accrued on December 31st, just two months later. Thus it is clear that in this hasty sale, the Ohio administrator sold for $2,500 the estate’s interest in accrued royalties of an approximately equal sum and also all of the estate’s future interests in the musical composition, the royalties, the copyright and any extension or renewals. If the sale is a bona fide sale, it was an incredible bargain for the purchaser, who not only bought nearly two thousand eight hundred dollars at a discount but all rights to future royalties.