Wills

Published on: August 5, 2017

Court Discusses Estate Tax Assessment

by Stephen Bilkis

This is a case where the State Tax Commission appealed from the order of Supreme Court, Appellate Division, Second Department which order affirmed an order of the Surrogate which on appeal affirmed a pro forma taxing order fixing and assessing the estate tax pursuant to article 10-C of the Tax Law, upon the estate of a decedent.

The decedent died a resident of the State of New York, leaving a will which was admitted to probate, letters testamentary having been issued to three (3) executors. An estate tax appraiser was appointed pursuant to provisions of section 249-m et seq. of the Tax Law who made appraisal and filed report with the Surrogate of Kings County. The report showed that decedent owned stocks, bonds and other property valued at more than $184,000 which constituted his entire estate. The decedent also carried life insurance, proceeds of which in the sum of $372,385.49 were payable to designated beneficiaries other than executors.

Debts and administration expenses amounted to more than $336,000. Charitable, public and similar gifts and bequests amounted to 10,000. Exemptions pursuant to section 249-q of the Tax Law were allowed in the sum of $100,000. The pro forma taxing order provided for a total tax of $726.58. The ground of appeal from such taxing order was that portion of debts of estate had been deducted from proceeds of insurance policies payable to beneficiaries other than executors and that such deduction was erroneous.

Published on: July 22, 2017

Court Hears Proceeding to Settlement an Intermediate Account

by Stephen Bilkis

In this proceeding to settle an intermediate account of bank as trustee of two trusts, the appeals are from two decrees of the Surrogate’s Court, Kings County. The trustee appeals from so much of the first decree as (1) adjudged that the trustee was guilty of gross neglect with respect to one of the trusts, the one established for the benefit of the testator’s two daughters, in failing to make the trust productive; (2) surcharged the trustee $23,298.27; (3) adjudged that a certain 1946 consent and release (referred to in the decree as made in ‘1947’) executed by the daughters was ineffective to bind them with respect to the conduct of the trustee subsequent to the date thereof; and (4) adjudged that the clause in a certain probate compromise agreement of 1926 had no legal force and effect upon the daughters, who in 1926 were infants.

The trustee, a remainderman and the executor of the estate of another remainderman appeal from so much of the second decree as (1) authorized and directed the trustee to invade the principal of the daughters’ trust by transferring it equally to the daughters and (2) terminated that trust. The trustee also appeals from the further portion of this decree which ‘confirms’ the $23,298.07 surcharge; said remainderman and executor of a remainderman’s estate also appeal from so much of this decree as failed to deny the relief requested in a petition by one of the daughters, and the daughters cross-appealed from another portion of this decree.

The decree entered October 27, 1972, affirmed insofar as appealed from by the trustee, without costs, on the opinions of the Surrogate dated July 9, 1969 and May 25, 1972. Decree entered July 30, 1973, reversed insofar as appealed from by appellants other than the daughters, on the law, and proceeding remitted to the Surrogate’s Court, Kings County, for a hearing on the issues presented by the petition and the answers thereto, limited to a determination as to (1) whether there exists a need to authorize or direct invasion of the corpus of the daughters’ trust and (2) whether the transfer to the shares of the stock of the corporation might be financially beneficial to them, thus justifying termination of the trust, with costs to abide the event. The appeals by said appellants from this decree presented no questions of fact.

Published on: July 15, 2017

Court Looks at Burden of Proof to Set Aside a Trust

by Stephen Bilkis

The decedent, Ms. DD, died on February 24, 2008, at the age of 92, leaving a duly executed will dated May 14, 1985. At the time of the decedent’s death, all legatees mentioned in the will had predeceased her, and any right to her estate under the will had passed to two nephews who lived in Nevada, and five grandnieces and grandnephews.

The decedent lived alone in her house in Bayside, Queens until December 2007 (hereinafter the Bayside house). The respondent, Ms. BB, lived in a nearby house on the same street. The parties stipulated that, as of 2007, Ms. BB had performed “many recurring household tasks” for the decedent, “including cooking, shopping, transportation, and bathing; and Ms. BB had obtained and kept a key to Ms. DD’s house where she frequently slept overnight.” Another neighbor also had a key and would also check in on the decedent once a day.

In December 2007 the decedent was hospitalized with a dislocated shoulder, and was discharged on January 4, 2008, to a rehabilitation facility. On or about January 9, 2008, while she was at the rehabilitation facility, the decedent consulted with an attorney, who was asked by Ms. BB to meet the decedent at the facility. The attorney had not previously dealt with either the decedent or Ms. BB. According to the attorney, the decedent told him that she wanted to give her house to Ms. BB, and if Ms. BB predeceased her, to Ms. BB’s daughter. The attorney informed the decedent that there were three ways to accomplish that end: deeding the property to Ms. BB, changing her will, or setting up a trust. The decedent said that she preferred to set up a trust, because she would retain ownership of her house and, upon her death, Ms. BB would avoid probate costs. The attorney asked the decedent about family, and she informed him that her husband died in 1984, she had no children, and she had very little contact with her family.

Published on: July 9, 2017

Probate Court Decides Will Construction Issue

by Stephen Bilkis

Application having been made to this Court by the trustees herein for a construction of the Will of Mrs. ALF, and for instructions regarding the trust for Mrs. VR, and it appearing that Mrs. ALF died a resident of Millbrook, Dutchess County, New York, on December 28, 1939, and that her Will was duly admitted to probate in this Court on January 15, 1940, and that LLE Inc. and the Bank of New York are duly acting under letters of trusteeship issued by this Court, and it further appearing that Mrs. VR, the primary income beneficiary of one of the trusts under article Sixth of the Will of Mrs. ALF, died on May 21, 1956, and that by reason of her death that trust is terminated, and it appearing that Louis Lee Stanton and the said Bank of New York as trustees, have submitted to the Court an account of their proceedings in respect to said trust so terminated, and it further appearing that a citation was issued to all the parties interested in this proceeding and that ABB, Esq., attorney and counselor at law of Beacon, New York, was designated to receive a copy of said citation on behalf of Mr. JAV, an infant under the age of 14 years, and the matter having come on to be heard by this Court on December 13, 1956, and no one having appeared but petitioners through their attorneys, CCC, Esqs., of 15 Broad Street, New York 5, New York, with WWW, Esq., of counsel, and the Court having appointed ABB, Esq., as Special Guardian for the infant, Mr. JAV, and after receiving a copy of the Special Guardian’s Report, and a Memorandum of Law submitted by the Special Guardian on behalf of his ward, and after hearing the respective attorneys and after due deliberation thereon, the Court finds and decides as follows:

It appears that Article Sixth of the Last Will and Testament of Mrs. ALF states as follows:

‘Sixth: To my Trustees hereinafter named I give and bequeath In Trust the sum of Twenty-five thousand Dollars ($25,000) in respect to each of my grandchildren (whether heretofore or hereafter born) who shall be living at the time of my death to hold one such sum of Twenty-five thousand Dollars ($25,000) for the benefit of each of my said grandchildren me surviving, and In Further Trust to invest and from time to time to reinvest each such trust fund of Twenty-five thousand Dollars ($25,000) and collect the income therefrom and during the minority of the grandchild for whom such trust fund is held to accumulate said income and, when such grandchild shall have attained the age of twenty one years, to pay the accumulated income to such grandchild and in Further Trust after each such grandchild shall have attained the age of twenty-one years to pay to such grandchild the whole net income of said trust fund. I direct that, when each such grandchild shall have attained the age of twenty one years, my Trustees pay over to him or her Ten thousand Dollars ($10,000) of the principal of said trust fund and, when he or she shall have attained the age of twenty five years, pay over to him or her the balance of the principal of said trust fund then remaining in Trust, whereupon the trust for the benefit of such grandchild shall cease and determine. In case any grandchild who shall survive me shall die before he or she shall have attained the age of twenty-five years, upon his or her death I give and bequeath the principal of said trust fund then held in trust and the accumulations of income, if any to such person or persons, and in such portions or shares as such grandchild by his or her last will and testament, duly admitted to probate and not otherwise, shall appoint, or in default of such appointment to the issue of such grandchild him or her surviving in equal shares per stirpes, or in default of any such issue then to my issue then surviving in equal shares per stirpes.’

Published on: July 9, 2017

Court Decides Whether 1958 Will has been Revoked- In re Grant’s Will, 334 N.Y.S.2d 780 (N.Y. Surr. Ct. 1972)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a testator properly revoked a prior will.

As long as he (or she) is not mentally incapacitated, a testator has the right to revoke a will at any time. Under New York EPTL § 3-4.1, there are 3 ways to revoke a will. 1. The testator can intentionally, physical destroy the will by ripping it up, burning it, cutting, shredding it, or in some other way destroying it. If the testator instructs another person to destroy the will, then that would serve as a revocation as well. 2. The testator can write and execute a new will. Doing so would automatically revoke a prior will and codicils, if any. To make his intentions absolutely clear, in the new will the testator can include a clause stating that the new will revokes any prior wills and codicils. Executed under the proper circumstances, a holographic or nuncupative will would also revoke a prior will. 3. The testator can revoke a will by creating a document (other than a new will) indicating his intention to revoke his will.

In In re Grant, decedent Grant was a resident of Kings County, New York, but spent time in the Barbados and had real property in the Barbados. He also had personal property in New York. In 1958 the decedent executed a will in New York in which he left his real property in Barbados to two of his sisters. He left his residuary estate which consisted of personal property in New York, to one of his brothers. He had another sister and another brother who did not receive anything under the 1958 will.

Published on: July 2, 2017

Proponent Moves for Judgement Pursuant to CPLR 4404

by Stephen Bilkis

In a contested probate proceeding, the objectants appeal from a decree of the Surrogate’s Court, dated November 5, 2003, which, after reserving decision on the proponent’s motion pursuant to CPLR 4404 for judgment as a matter of law, made at the close of the evidence, and after the trial ended in a hung jury, upon the granting of the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate.

Ordered that the decree is affirmed, with costs payable personally by the objectants.

After the parties rested at trial, the proponent moved pursuant to CPLR 4404 for judgment as a matter of law. The Surrogate’s Court reserved decision on the motion and submitted the issue to the jury. After the trial ended in a hung jury, the Surrogate’s Court, upon granting the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate. Contrary to the objectants’ contention, the Surrogate’s Court properly entertained the motion after the trial ended in a hung jury.

Published on: June 14, 2017

Court Rules on Ante-Nuptial Agreement – Simms’ Will, In re, 273 N.Y.S.2d 494, 51 Misc.2d 540 (N.Y. Surr. Ct., 1966)

by Stephen Bilkis

Petitioner Jankowitz is a niece by the half blood of decedent Simms. Jankowitz’s father and Simms were half brothers. Jankowitz and Simms, entered into an antenuptial agreement in 1961 in which Simms agreed to leave her a testamentary gift of $25,000. The two were then married in accordance with the requirements of the rites of the Jewish faith. In January 1962, the marriage was annulled. The matrimonial judgment declaring the marriage void was based on section 5 of New York’s Domestic Relations Law which provides that a marriage between “an uncle and niece” is incestuous and void. However, it does not expressly address whether a marriage by an uncle and niece by the half blood is also incestuous.

The petitioner received alimony. In 1965 Simms died, leaving a will. The petitioner filed an objection to the will because the will did not contain the bequest of the $25,000 agreed to in the antenuptial agreement. The court dismissed her objections saying that she lacked standing since she was not an interested party. In order to have standing to contest a will, you must be an interested party. Typically interested parties would include distributees because they would be entitled to share of the estate in the absence of a will. For example, the surviving spouse would be a distributee, as would the children of the deceased. However, a former spouse would not be a distributee. Other interested parties would include any beneficiary who would have benefited under a prior will. Because the court concluded that the petitioner did not qualify as an interested party, it dismissed her objections.

The petitioner did not give up. In April, 1966, she sought a construction of the will. The court declined to entertain the petition.The petitioner now moves to compel the executors to render and settle their account, asserting that she is a creditor of the estate because of the antenuptial agreement and also because of unpaid alimony.

Published on: June 7, 2017

Beneficiary questions the apportionment of estate taxes – Schneider, Matter of, 572 N.Y.S.2d 737, 175 A.D.2d 287 (N.Y. App. Div., 1991)

by Stephen Bilkis

This case involves an appeal to a Surrogate’s Court decision related to the accounting filed by an executor. One of the responsibilities of an executor is to keep accurate records of all of the money coming into an estate and all money distributed from the estate. The executor must submit a final accounting to the Surrogate’s Court which will review the records and ensure that the executor handled the estate assets properly. An interested party, such as a beneficiary, has the right to object to an accounting.

M. Schneider is the executor of the estate of his father, S. Schneider. According to the terms of S. Schneider’s will, his estate went to his two children, his son, M. Schneider and his daughter, J. Kotcher. M. Schneider was to receive corporate stock, valued at approximately $144,000. The remaining estate, valued at approximately $673,000, was to be equally divided between M. Schneider and J. Kotcher.

Kotcher objected to probate. However, Kotcher ultimately withdrew her objections after M. Schneider agreed to pay her $75,000. M. Schneider then filed an amended final account, and Kotcher objected to it because it credited the estate with paying the $75,000 settlement. By crediting the estate with paying her the $75,000, her pro rata share of the estate taxes increased. Kotcher asserted that the $75,000 was paid by M. Schneider personally, and not the estate. The Surrogate’s Court disagreed, concluding that the stipulation of settlement required the $75,000 to be paid by the estate and not Marvin Schneider personally. Kotcher appealed. The appellant division found in favor of Kotcher.

Published on: May 31, 2017

Plaintiffs Seek Declaration of Rights Regarding Father’s Estate – Wagner v. Wagner, 58 A.D.2d 7, 395 N.Y.S.2d 641 (N.Y. App. Div., 1977)

by Stephen Bilkis

In this case the court is asked to enforce an agreement made by spouses in a joint will that required the surviving spouse to leave any property received under the will to the couple’s children.

This case involves a dispute over the estate of R. Wagner and T. Wagner. R. Wagner and T. Wagner were married. T. Wagner died and R. Wagner married A. Wagner. Then R. Wagner died, leaving A. Wagner as the surviving spouse. R. Wagner left a will that named Runstorf as the executor. This case is an action brought by the children of R. Wagner and T. Wagner for declaratory judgement related to certain property that was originally owned by R. Wagner and T. Wagner. The action named A. Wagner and Runstorf as defendants. The Supreme Court dismissed the complaint. The plaintiffs appealed.

In the complaint, the plaintiff asked the court to impress a constructive trust upon real property located in Staten Island, to void A. Wagner’s right of election, to impress a constructive trust upon the proceeds of A. Raymond’s pension plan, and to impress a constructive trust on the funds in savings and checking accounts that were owned by T. Wagner and A. Wagner jointly.

Published on: May 24, 2017

Petitioner Requests Settlement of Accounts of Estate – Zimmerli’s Estate, In re, 220 N.Y.S.2d 123 (N.Y. Surr. Ct., 1961)

by Stephen Bilkis

The executor of the estates of two decedents asks the court to determine whether the proceeds from an insurance settlement should go to the decedents’ residuary estates or if it should go to beneficiary who was supposed to receive the property that was destroyed.

Husband and wife decedents F. Zimmerli and J. Zimmerli, presumably died simultaneously in a fire in their home on December 13, 1959. They left reciprocal wills which were duly admitted to probate on January 15, 1960. The wills state the real estate that was destroyed in the fire was to go to the Grace Episcopal Church of Lyons, New York. Caverly was named as the executor of the estates of both of the decedents. Caverly filed a petition with the Surrogate’s Court for the Judicial Settlement of his first intermediate account in the two estates. In the petition, Caverly asked the court to determine if the $16,813.20 insurance settlement for the fire loss to the real estate of the decedents should go to the decedents’ residuary estates or to the Grace Episcopal Church.

The language of the wills clearly shows the intention of the testators to specifically devise the destroyed real estate to the Grace Episcopal Church which is plain and obvious. However, the question is whether the rules related to how to handle proceeds of insurance policy means that the proceeds should go to the decedents’ residuary estates.