Wills

Published on: October 16, 2013

Court Decides Validity of an Election under Decent Estate Law

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding to determine the validity of an election under subdivision 7 of section 18 of the Decedent Estate Law.

The court is faced with the issue of whether or not under the circumstances herein, the respondent has lost his right of election by reason of his failure to serve the notice upon the executor personally and by failing to file and record it in the court as expressly required by statute.

A New York Custody Lawyer said on 17 November 1947, the testatrix died a resident of Bronx. She was survived by her husband and eight children, one of whom is an infant. On 20 April 1948, her will was admitted to probate in this court and letters testamentary was issued on the same day to one of her sons.

Published on: October 15, 2013

Court Rules on Case Involving Attorney Client Privledge

by Stephen Bilkis

A New York Probate Lawyer said that in this proceeding, the court is faced with the primary issue of whether or not the respondent may be compelled to produce at her examination before trial petitioner’s own wills and trusts or whether or not the attorney-client privilege or the confidential, ambulatory nature of the will of a living person protects these documents from disclosure.

The court rules that these documents are not protected by the attorney-client privilege. A New York Wills Lawyer said the confidential nature of these documents, however, dictates that disclosure should be compelled only upon a strong showing of necessity. In this case, the court finds that a limited disclosure is appropriate to enable the petitioner to properly prepare for trial.

The petitioner in this case is the decedent’s sister who commenced this proceeding to set aside and declare invalid a lifetime trust created by the decedent and two wills which were executed respectively on the date that the trust was created and the date that the trust was amended. Petitioner moves for the entry of an order directing that the decedent’s other sister, the respondent, to produce her previous and existing wills and/or trusts and any of her wills and/or trusts prepared by Atty. RL or his office. On the other hand, the respondents have cross-moved for a protective order with regard to the requested disclosure and for an order dismissing that branch of the petition seeking to declare the decedent’s wills invalid.

Published on: October 14, 2013

Court Decides if Testamentary Trustee Can File a Bond

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner, the nominated trustee of the trust created in the residuary clause of decedent’s will, requests that an order be entered modifying the probate decree by deleting the direction therein that he file a surety bond in the sum of $227,000.00. The initial question to be answered is whether the court has discretion under the provisions of SCPA 801(1)(c) and 806 to dispense with the requirement that a testamentary trustee file a bond notwithstanding the absence of a direction in the will exempting the trustee from this requirement. Of course, if the court has this discretion, it must be determined whether this is an appropriate case in which to exercise it.

A New York Will Lawyer said that, with the exception of a contingency not pertinent to this application, decedent’s son is to receive one-third of the net income from the residuary trust until he attains the age of 58, at which time he shall receive all of the principal and accrued interest. The principal shall be paid to the son’s issue in the event that he dies prior to attaining the age of 58. Petitioner is nominated as the executor in one paragraph and as the trustee in the following paragraph. The first of these paragraphs also nominates an alternate executrix and specifically directs that neither the executor nor the alternate shall be required to file any bond. The next paragraph fails to name an alternate trustee and is silent on the subject of whether the trustee must file a bond.

A Long Island Probate Lawyers said that, petitioner alleges that he is the chief financial officer of a corporation, that his children considered decedent “as a grandfather rather than a friend” and that decedent “would have dispensed with the requirement of a bond had he known the cost” because he had “the utmost faith” in petitioner’s “abilities to administer the trust”. Inasmuch as petitioner also alleges that the annual cost of the bond is “in excess of $700.” and that the cost over the potential lifetime of the trust would be “over $10,000”,it appears that the son will be 58 in approximately 14 years. In any event, the son has filed an affidavit in support of the application. He states that he has two infant children, that he is going through an acrimonious divorce, and that he has serious financial problems. He concludes that the cost of the bond “is wholly unnecessary and a waste of money”.

Published on: October 13, 2013

Court Decides if Petitioners Constitutional Rights Have Been Violated

by Stephen Bilkis

A New York Probate Lawyer said that, this is an appeal under 28 U.S.C. § 1257 (2) from a judgment of the Supreme Court of Arizona affirming the dismissal of a petition for a writ of habeas corpus. The petition sought the release of appellants’ 15-year-old son, who had been committed as a juvenile delinquent to the State Industrial School by the Juvenile Court of Gila County, Arizona. The Supreme Court of Arizona affirmed dismissal of the writ against various arguments which included an attack upon the constitutionality of the Arizona Juvenile Code because of its alleged denial of procedural due process rights to juveniles charged with being ‘delinquents. The court agreed that the constitutional guarantee of due process of law is applicable in such proceedings. It held that Arizona’s Juvenile Code is to be read as ‘impliedly’ implementing the ‘due process concept.’ It then proceeded to identify and describe ‘the particular elements which constitute due process in a juvenile hearing.’ It concluded that the proceedings ending in commitment of the 15-year-old son did not offend those requirements.

A New York Will Lawyer said that, on Monday, June 8, 1964, at about 10 a.m., the 15-year-old son and his friend were taken into custody by the Sheriff of Gila County. The 15-year-old son was then still subject to a six months’ probation order which had been entered on February 25, 1964, as a result of his having been in the company of another boy who had stolen a wallet from a lady’s purse. The police action on June 8 was taken as the result of a verbal complaint by a neighbor of the boys, about a telephone call made to her in which the caller or callers made lewd or indecent remarks. It will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly offensive, adolescent, sex variety.

A Long Island Probate Lawyer said that, at the time the 15-year-old son was picked up, his mother and father were both at work. No notice that he was being taken into custody was left at the home. No other steps were taken to advise them that their son had, in effect, been arrested. He was taken to the Children’s Detention Home. When his mother arrived home at about 6 o’clock, he was not there. His older brother was sent to look for him at the trailer home of his friend’s family. He apparently learned then that he was in custody. He so informed his mother. The two of them went to the Detention Home. The deputy probation officer, who was also superintendent of the Detention Home, told the mother was there’ and said that a hearing would be held in Juvenile Court at 3 o’clock the following day, June 9.

Published on: October 12, 2013

Court Discusses the Rule of Perpetuities

by Stephen Bilkis

A New York Probate Lawyer said that a woman died on March 1, 1968 and her will dated October 8, 1958 was admitted to probate on March 20, 1968. On August 29, 1968, the appellee filed his petition for construction and revocation wherein he renounced any disposition and bequest made to him under said will and wherein he petitioned that paragraph FIFTH of the will be revoked and declared invalid. On September 18, 1968, the appellant as respondent filed his answer to said petition;

On December 19, 1968, the appellant filed his amendment to said answer which amendment embraced a revocable designation by a man of those relatives and corporations which were to take the principal of the trust at its termination. A New York Will Lawyer said this designation was executed on September 3, 1968.

On October 22, 1969, the distinguished probate judge entered his order adjudicating paragraph FIFTH to be null and void as violating the rule against perpetuities. The said order also held that the power of appointment given to the man could not be exercised until the death of the brother and that man’s attempt to do so was void. The trial court found it unnecessary to decide the question of whether the power was impossible of performance because of ill-defined, vague and ambiguous classes of recipients described therein. This latter question formed the basis of the appellee’s petition; the rule against perpetuities not being raised therein.

Published on: October 11, 2013

Court Discusses Validity of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner-appellee, instituted a proceeding in the county judge’s court, seeking construction of the will of the deceased as to her rights under that instrument. She asserted her status as surviving pretermitted spouse of the deceased and alleged that she was entitled to distribution of the estate as if the deceased had died intestate, or distribution as his sole surviving heir-at-law. A Bronx Probate Lawyer said that, the probate court, after hearing, entered the order appealed from, adjudging that the petitioner, as the surviving pretermitted spouse, was the sole distributee of the estate and that she should receive that portion of it which she would have received had her husband died intestate.

A Bronx Estate Administration Lawyer said that, the Will in question, dated February 9, 1955, was admitted to probate November 18, 1959, and petitioner was appointed as Administratrix Cum Testamento Annexo on January 29, 1960. At the hearing, she was the only witness to appear before the court. The estate was valued at approximately $114,000.00. There were no lineal descendants, the only blood relative of deceased being a sister.

A New York Will Lawyer said that, the testator, in the will, directed that he be interred near the remains ‘of my beloved wife, with terms of endearment being employed elsewhere in the will in reference to her. One of the bequests in the will gave: ‘(d) the sum of Thirty Thousand ($30,000.00) Dollars to the petitioner, now residing at 2610 Grand Avenue, Bronx, New York.’ The person bequeathed was one and the same person as the petitioner. Other bequests in the will ranged from $2,000.00 to $25,000.00 left to various friends of testator, to his sister, and to nine different charitable institutions.

Published on: October 10, 2013

Court Discusses Insurance Claim for Real Property

by Stephen Bilkis

Respondent Estate Company is the owner of commercial rental property located at 33 West 19th Street in Manhattan. Respondent had a commercial property insurance policy with appellant Insurance Company which included “Builders’ Risk Coverage,” covering damage to its property while undergoing renovation. A New York Probate Lawyer said that during the policy period, the roof of its building was opened in order to perform construction work. Inclement weather caused rain to enter the building through the roof opening, resulting in extensive damage to the property.

A New York Estate Lawyer said that, shortly after the occurrence, respondent claimed it promptly notified appellant of the loss. According to the respondent, however, appellant failed to investigate or adjust the claim until several weeks later. A New York Estate Litigation Lawyer said that, Appellant then denied the claim three months after that, stating that respondent’s loss was the result of repeated water infiltration over time and wear and tear rather than from a risk covered under the builders risk policy provision.

A New York Will Lawyer said that, respondent commenced this action against appellant, alleging that it breached the insurance contract by failing to properly investigate the loss and denying the loss as not covered under the policy. Respondent sought both direct and consequential damages that it claimed stemmed from appellant’s breach.

Published on: October 9, 2013

Court Discusses Kinship Hearing

by Stephen Bilkis

This is a motion after a kinship hearing, holding that the entire distributable estate of a deceased woman should be deposited with one person. The complainant seeks to leave to present additional testimony.

A New York Probate Lawyer said the request for the alternative relief of reopening the hearing appears to present a case of first impression under the attorney-client privilege. The complainant contends that it is permissible for an attorney to testify about history statements made by the deceased woman to him when she consulted him for the purpose of preparing a last will. It is conceded that the consultation did not result in any last will being completed. Subsequently, an objection to the aforesaid offered testimony was sustained at the trial. The complainant’s position is that since the attorney is a disinterested witness, who is willing to testify about matters which will not reveal information of a confidential nature, the attorney-client privilege should not be utilized to seal his lips.

A New York Will Lawyer said sources revealed that the attorney-client privilege is the oldest of the privileges currently recognized.

Published on: October 8, 2013

Court Discusses Decedent’s Gift to Charity

by Stephen Bilkis

A man died and his last will was admitted to probate approximately five months thereafter. A New York Probate Lawyer said the complainant in this matter has a one-quarter remainder interest in the residuary trust established under the man’s last will.

One of the paragraphs in the last will is at issue that states that the hospital will be used to endow charity beds and for charitable purposes only as a memorial to the man’s sister and to himself.

A New York Wills Lawyer said that upon the death of each of several income heirs, the complainant received a principal payment for its remainder interest in the above testamentary trust. The amount of the principal payments received by the complainant is $157,452.10 in total. The present value of the funds held by the complainant, including accumulated interest, subject to the provisions of the deceased man’s last will totals approximately $850,000.00.

Published on: October 7, 2013

Court Decides Ownership of Multiple Parcels of Property

by Stephen Bilkis

A man died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters of testamentary were issued there under to the decedent’s spouse, the nominated executrix. A New York Probate Lawyer said the man’s will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a trust fund until they each attained the age of 23 years. The man’s daughters attained the age of 23 years in 1959 and 1961, respectively.

The record reflects that deceased man’s estate apparently consisted of ownership of, or interest in, numerous unimproved parcels of real property located in Bronx County. A New York Will Lawyer said the record further reflects that many of said parcels were intermittently sold by the executrix in the years after her husband’s death, and that the proceeds thereof were utilized to pay the indebtedness on other properties, to satisfy outstanding loans, to defray expenses associated with retention of the remaining parcels, and to pay the living expenses of herself and her children. None of the proceeds derived from these sales were ever placed into any bank account or trust fund for the man’s daughters as directed by the will.

A Westchester County Probate Lawyer said that upon an application by the daughters, on August 9, 1985, the court entered an order directing the fiduciary to render and seek judicial settlement of her account. The executrix subsequently filed her account on April 11, 1986. Separate sets of objections were filed thereto by the deceased man’s daughters and son.