Wills

Published on: January 3, 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 Queens Probate Attorney 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 2, 2014

Court Discusses the Issuance of Premliminary Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said that, a motion and cross motion places in issue the rights of persons interested in this estate to obtain discovery from the preliminary executor pursuant to subdivision 4 of SCPA 1412. In 1963, based upon the recommendation of the Bennett Commission, the Legislature created a new type of letters called “preliminary letters testamentary” and a new fiduciary office called “preliminary executor”. SCPA 1412 describes in detail the powers and limitations of such office and the expeditious procedure by which such letters may be obtained. Before this new fiduciary office was created, when pressing matters of estate administration arose in the course of a delayed probate proceeding, the nominated fiduciary could be involved procedures obtain letters of temporary administration, a fiduciary office with rather limited powers.

A New York Will Lawyer said that, when it was originally enacted as SCA 153-a, as well as now, SCPA 1412, contained a subdivision which provided: “The court may limit preliminary letters testamentary to the receipt of assets specified in an order and may prohibit the collection of any other assets of the decedent, may make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate or may limit and restrict the person named in such letters in any manner that the court deems advisable for the effective protection of the rights of all persons who may have an interest in the estate of the decedent” (now subd. 4 of SCPA 1412).

A Queen Probate Attorney said the issue in this case is the construction of the phrase giving the court in issuing preliminary letters discretion “to make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate”.

Published on: January 2, 2014

Court Determines if Corporation is Sole Surviving Trustee of Estate

by Stephen Bilkis

A New York Estate Lawyer said that, the testator, while a resident of New York, executed a will in 1904 and a codicil thereto in 1911. He died a resident of Rhode Island in 1912 and the aforesaid instruments were admitted to probate as his will in that state. A New York Banking Corporation became successor trustee under the will in 1918 by appointment of the then surviving trustees.

A New York Probate Lawyer said that, an accounting was had in Rhode Island in 1948 and the accounts of the banking corporation and an individual trustee were settled by a decree made on February 7, 1949. The instant proceeding is brought by the corporation as sole surviving trustee for the settlement of its accounts for a period subsequent to June 21, 1948 and for construction of the will. Other issues have been raised by respondents but it has been stipulated that the construction question shall be disposed of as a preliminary issue.

A New York Will Lawyer said that, certain testamentary trusts have terminated and remainder interests therein are payable pursuant to a direction of the testator which he expressed in the following language: to the Rector, Church Wardens and Vestrymen of St. Thomas’ Church in the City of New York, for the purpose of erecting and maintaining, in such place as they may select, a building or buildings for the care of persons suffering from tuberculosis, to be called the Scott Memorial Home.’

Published on: January 1, 2014

Estate Bill Come in After Estate Assets have been Distributed

by Stephen Bilkis

A New York Probate Lawyer said that, the claim of the City of New York in the total sum of $1,792 has been established. That sum was for hospital care furnished the decedent by the City of New York. The executor has rejected the claim for the reason that the bill was first sent to him by the City more than seven months after issuance of letters and after he had distributed the assets of the estate.

A New York Will Lawyer said that, the decedent died on January 18, 1960 at one of the hospitals maintained by the City of New York. He owned securities which he had directed his brokers to sell early in 1960, apparently at the request of city officials. The proceeds, in the form of a check in the sum of $4,743.54, were sent to him in care of the hospital Property Office but the decedent was not physically able to endorse the check and he died a few days later. The hospital delivered the check to the Public Administrator of the County of New York, who turned it over to the executor after he had qualified.

A Bronx Probate Attorney said that, the decedent had no relatives within the State. His will was filed in this court on July 18, 1960, but a petition for its probate was not filed until March 20, 1961 and it was admitted to probate on July 12, 1961, approximately eighteen months after the decedent’s death. The City’s investigators appear to have checked the court records for an estate several times in the year 1960, but to have made no further check of the records until May, 1962.

Published on: January 1, 2014

Decedent’s Widow Seeks to Revoke Preliminary Letters Testimentary

by Stephen Bilkis

A New York Probate Lawyer said that, in the pending probate proceeding, the decedent’s widow has sought to revoke the preliminary letters testamentary issued to the decedent’s sisters, the nominated executrices under the will, and to disqualify the sisters from appointment as executrices. The sisters have questioned the status of the widow and have sought a construction of the decedent’s will. The widow has cross-moved for summary judgment and for an accounting. The parties are also disputing the ownership of the contents of the decedent’s safe deposit box. A hearing was held with respect to the issues of the widow’s status and the ownership of the safe deposit box contents.

A New York Will Lawyer said that, the decedent died on May 20, 1980, at eighty years of age. He left a will, dated January 19, 1973, which has been offered for probate. The decedent’s will provides a bequest to his wife, of “all my furniture, furnishings, automobiles and all my other household goods and effects.” The will then give a $2,500 legacy to the decedent’s brother, and gives all of the decedent’s “jewelry and articles of personal adornment”, in equal shares, to the decedent’s sisters. The will then provide as follows: “SIXTH: I give and bequeath to my wife, if she survives me, such part of my estate as my wife would have received had I died intestate domiciled in the State of New York. In the event that my wife, shall die with me in a common accident or disaster, or under such circumstances as to make it impossible or difficult to determine which of us died first, or within sixty (60) days after my death, I direct that my wife shall be conclusively deemed not to have survived me. “SEVENTH: In the event that my wife, shall predecease me, or shall be deemed not to have survived me in accordance with the provisions of paragraph “Sixth”, all property, of all kinds, wherever situated, belonging to me at the time of my death, shall pass in accordance with the provisions of paragraph “Eighth”. “EIGHTH: All the rest, residue and remainder of the property which I own at my death I devise and bequeath to my sisters, or the survivor. If neither of said sisters of mine shall survive me, I devise and bequeath my residuary estate to my brother.”

A Westchester County Probate Lawyer said that, the decedent’s two sisters are named as executrixes under Article NINTH of the will. The proof adduced at the hearing established the following facts concerning the status of the decedent’s wife who claims to be the decedent’s widow. The decedent married his wife on September 10, 1963 in Greenwich, Connecticut and a valid marriage certificate is in evidence. The decedent and his wife lived together as husband and wife continuously from the date of their marriage until the decedent’s death in 1980. The decedent had been married twice before. The second marriage ended with the death of the wife in 1960. The first marriage terminated by divorce decree dated January 18, 1943 issued by the Supreme Court, County and State of New York which provided that:

Published on: December 31, 2013

Court Rules on Will Construction

by Stephen Bilkis

In this Estate Litigation case, the executor of the decedent’s estate has instituted this proceeding for construction of the decedent’s will.

A New York Probate Lawyer said that the testator, a resident of Paris, France, albeit a citizen of the United States died in March 1966. The value of his gross estate located in New York County at the time of his death was approximately $88,000. In addition there must be included in his estate for estate tax purposes a trust valued at approximately $2,500,000 over which he had a general testamentary power of appointment.

The power of appointment was derived by the decedent from his wife, also a resident of France and a citizen of the United States who died in April 1963 leaving a will which was admitted to probate in this court. A New York Will Lawyer said under her will a marital deduction trust was created of one-half of her residuary estate with the income thereof payable to the decedent for life.

Published on: December 29, 2013

Husband Files Objection to Wive’s Donation to Chartities

by Stephen Bilkis

In this Estate Litigation action, the will of the testatrix bequeathed her husband a general legacy of $2,500 and named him as income beneficiary of a trust of one-half of the residuary estate. The remaindermen of this trust are charities as also are the legatees of the remaining one-half of the residuary estate. The husband filed objections to the probate of the will and challenged the bequests to charities as violative of Decedent Estate Law, § 17.

A New York Probate Lawyer said that negotiations between the husband and the charities resulted in an agreement by the terms of which the husband withdrew his objections to probate, consented to the admission of the will to probate and renounced and released any and all rights granted to him by Decedent Estate Law, § 17. Five charitable organizations agreed, in the same instrument of settlement, that immediately upon the issuance of letters testamentary the executrix would pay to the husband the sum of $26,000. The agreement stated that ‘except as in this stipulation and agreement provided, all of the provisions of aforesaid Will shall remain in full force and effect’.

The executrix now is accounting and has computed the amount of the husband’s trust in compliance with the provisions of the will and has deducted the $26,000 payment to the husband from the share of the residuary estate which, under the will, is payable to charities. IA New York Will Lawyer said certain of the latter have objected to this allocation of the settlement figure and they assert that the payment to the husband under the settlement agreement should have been deducted, in the manner of an administration expense, from the full residuary estate prior to the computation of the amount of the residuary trust.

Published on: December 28, 2013

Petitioner Raises Issue of Undue Influence

by Stephen Bilkis

In this Will Contest action, the objectants move for reargument of the Court’s decision. Petitioners cross move for summary judgment dismissing the objections.

A New York Probate Lawyer said that decedent died in July 1992. Petitioners, as nominated co-executors, seek to admit to probate an instrument executed sometime in June 1981 and two codicils. The sole residuary beneficiary began acting as accountant and financial advisor for decedent and her husband in 1970.

The issue to be resolved before the Court is whether this fact, without more, raises an inference of undue influence.

Published on: December 27, 2013

Petitioner Seeks to Dispense with Service of Process of Will

by Stephen Bilkis

A petition for probate of the decedent’s will has been filed with the Probate Department of the New York Court. The petitioner is the nominated coexecutor and son of the decedent.

A New York Probate Lawyer said that the petitioner has requested that the court dispense with the service of process upon the grandchildren of the decedent who are persons adversely affected by the exercise of powers of appointment in the decedent’s propounded will.

“The Official Form of Probate Petition (Form No. 7) lists among the persons to be cited ‘all persons adversely affected by the purported exercise by such will of any power of appointment.’ Section 1403 does not make such persons essential parties to the probate. This omission was not an oversight on the part of the Legislature or the Commission on Estates. The inclusion of such persons was considered and rejected because it might happen that the parties would not be aware of any power of appointment until after the probate proceeding terminated and then the omission of an essential party to the proceeding could constitute an infirmity in the decree. The inclusion of the parties in the Official Form was intended to remind attorneys of the prudence of citing them.

Published on: December 26, 2013

Claimant Brings Suit Based on Oral Promise by Decedent

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application by the preliminary executors in a probate proceeding to dismiss a claim asserted against the estate. This claim to one-half of the estate was made by the claimant simultaneously with his opposition to a decree approving a compromise agreement which would dispose of a heavily litigated protracted will contest. Under several wills of the decedent, including this last will, he would be entitled to a $20,000 legacy. The claim is based on an alleged oral promise by the decedent to make a will which would give to the claimant one-half of the residuary estate in consideration of the claimant’s conveyance to the decedent of a one-half interest in a house on Fire Island. This house was sold on January 7, 1973 for $47,000. The claimant asserts that his interest in the estate is upwards of $500,000.

A New York Will Contest Lawyer said that, a bill of particulars served in support of the claim alleges that the agreement was partly oral and partly in writing. The writing is a will dated January 18, 1965 which was revoked by a later will. There were several later wills, and deeds affecting the Fire Island property. The first deed made on February 2, 1963 was given to the claimant as grantee by the decedent as grantor. That deed reserved to the decedent a life estate. The next deed dated January 16, 1965 was executed by the claimant, creating a joint tenancy with right of survivorship in himself and the decedent. The third deed is from the joint tenants as grantors to the decedent as grantee. The will relied upon by the claimant bequeaths to him one-half of the residuary estate after bequests of tangible personal property and eight general legacies of $5,000 each and another bequest relating to stock in a closed corporation.

The issue in this case is whether the claim should be dismissed on the ground that the claim is not maintainable because it is barred by the statute of frauds.