Wills

Published on: September 10, 2012

Court Discusses Marital Trust Connected with a Will

by Stephen Bilkis

This matter deals with appointing the trustees of the trust for the benefit of Gertrude Feil under the fifth article of the last will and testament of Louis Feil who is deceased. The Surrogates Court of the State of New York located in Nassau County is overhearing this case.

Petitioner’s Motion

A New York Probate Lawyer said the petitioner has motioned for an order to grant the following relief: to dismiss the affirmative defenses that were interposed in the two proceedings, to grant a summary judgment to the petitioner and dismiss the answers and grant the petitions, and to have the letters of trusteeship issued to Jay I. Anderson in connection with the marital trust that was established in the fifth article of the will of Louis Feil and to issue letters of trusteeship to Jay I. Anderson, Erika Feil Lincoln, and Leonard Boxer in connection with the Charitable Lead Annuity Trusts that were established under the sixth article of the will of Louis Feil.

Published on: September 3, 2012

Probate Court Hears Case Filed by Fiduciary

by Stephen Bilkis

Queens Probate 18

This is an uncontested administratix’s accounting proceeding taking place in the Surrogate’s Court of Suffolk County. A New York Probate Lawyer said a stipulation has been submitted to the court for approval into the provisions of an intermediate accounting decree.

Case Background

Published on: August 15, 2012

Court Looks at Restrictive Covenant

by Stephen Bilkis

This action involves a case where the court considered that defendant violated a certain restrictive covenant claimed by plaintiffs to affect the lots or parcels of land within an area located in the Borough of Brooklyn.

In the year 1893, deceased died testate seized of said real property. His will was duly admitted to probate by the Surrogate of the County of Kings. By said will the testator’s real property was devised to his children and his executors were given a power of sale.

On or about April 28, 1899 said executors caused to be filed in the office of the Clerk of the County of Kings a map entitled ‘Map of Property Belonging to the Estate of Deceased.’ By said map, the land within the area was subdivided into building lots. All of the lots within the tract, except those fronting on Flatbush Avenue, were conveyed by deeds containing a restrictive covenant in form as follows:

Published on: August 14, 2012

Court Looks at Construction of Will

by Stephen Bilkis

This involves a case where the court uphold the principle that the intention of the testatrix is of paramount importance which must be respected after it has been presented and admitted to probate. If the executrix intends to dispose the subject property in the will, the court suggested that she may do so through application for the sale of the real property pursuant to sections 233 of the Surrogate’s Court Act.

On October 28, 1931, decedent’s holographic will was admitted to probate on September 25, 1956. In paragraph ‘Third’ of the will, testatrix provided in part as follows: ‘I give to my daughter In trust for her god child and my grand son 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 leaset 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 grandson survived testatrix but has since died.

Petitioner seeks permission from the probate court to sell the real property described in the will.

Published on: August 13, 2012

Trustee Requests Division of Trust

by Stephen Bilkis

The Facts:

On 31 December 1915, a testator died. On 31 March 1916, his will dated 20 October 1915 was admitted to probate. The Kings County Trust Company was granted letters testamentary on 31 March 1916 and letters of trusteeship on 24 October 1934. Under the will, the testator gave his residuary estate to his executor, in trust, to pay the net income arising therefrom to his wife, for and during her life. On 11 March 1959, the testator’s wife died. The will provides that upon the wife’s death, the said trust is to terminate, and the corpus thereof is to go and that the testator gives, devises and bequeaths the same, in equal shares, among his then surviving nephews and nieces, and the issue of any deceased nephew or niece (except issue of one niece), such issue taking in equal shares the share their parent would have taken if living. According to the will, it is the testator’s intention not to make the issue of the lone niece beneficiaries under his will.

Thereafter, the trustee brought the instant proceeding for the judicial settlement of its account. The trustee has requested in its petition that the Court find and determine that, in accordance with the intent of said decedent, as set forth in the will, the net distributable principal of the trust, now terminated, is primarily divisible into four equal major shares, one each for the lawful issue living at such termination and who represent decedent’s deceased nephews and nieces, the issue of each said deceased nephew and niece, respectively, to receive, in equal sub-shares, per stirpes, the equal major share which the deceased nephew or niece whom they represent would have taken, if living; and direct distribution accordingly.

Published on: August 12, 2012

Court Looks at Intention Underlying Will Documents

by Stephen Bilkis

The Facts:

On 27 December 1919, a testatrix died leaving a will dated 11 February 1905 which was duly admitted to probate on 18 June 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, the said testatrix devised all her property, real and personal, to her friend who was also named as the sole executrix with the further proviso that after her friend dies, the balance or what is left shall go to her brothers or their heirs, naming them; that it shall be equally divided between her brothers or their heirs. However, upon testatrix’ death, her friend took possession of all the real and personal property of the testatrix and made conveyances, transfers, assignments, sales, and alienations, individually and as executrix. The assets of the estate were disposed of among several persons.

Thereafter, the Public Administrator of the County of Kings filed an application for a construction of testatrix’ will and other relief.

Published on: August 11, 2012

Court Looks at Disposition of Decedent’s Gifts

by Stephen Bilkis

The Facts of the Case:

On 19 December 1947, a woman died. She was a resident of the Village of Millbrook, Dutchess County, New York. On 18 February 1948, her last Will and Testament was duly admitted to probate by decree of the Dutchess County Surrogate. Under the said will, after making certain specific devises, the testatrix, in paragraphs Fifth and Sixth of her said will, provided that:

Fifth: “I give, bequeath and devise to my executors hereinafter named all the rest, residue and remainder of my property including my house on Elm Drive, Millbrook, N. Y., to be held by them in trust for my brother, Pleasant Valley, N. Y., they to invest and reinvest the same and pay the income therefrom to him for as long as he lives. A New York Probate Lawyer said a portion of the principal may also be used for the support and maintenance of my said brother if deemed necessary in the sole judgment of my said executors and trustees.”

Published on: August 10, 2012

Petitioner Seeks Order

by Stephen Bilkis

The petitioner has filed for an order to show cause before the court. The petitioner seeks an order under Rule 137 of the Rules of Civil Practice to direct respondent to appear and testify pursuant to a Commission issued out of the Probate Court of the Commonwealth of Massachusetts, Middlesex County. Under such action pending in the sister state, petitioner seeks to obtain from the defendant-wife, the custody of their minor child. A New York Probate Lawyer said to bolster his case so that child custody (father’s rights) is granted in his favor, the movant contends it is necessary to prove that his wife is not mentally fit to care for their infant child.

The respondent who is a psychologist opposes the petition and contends that the granting of such an order would compel him to violate a statutory prohibition regulating his conduct by forcing him to disclose privileged matters between him and a person alleged to be his patient.

From the papers submitted, the court notes that respondent, after having been served with the subpoena, did appear pursuant thereto before the designated commissioner on 7 July 1962; that he answered the first three interrogatories as to his name, address and profession; that as to the balance of the queries, he declined to answer on the ground that such disclosure would reveal confidential relations and communications between himself, as a psychologist, and a client, and as such, is privileged under Section 7611 of the Education Law. The law on privileged communications, under the said Education Law, provides that: “The confidential relations and communications between a psychologist registered under the provisions of this act and his client are placed on the same basis as those provided by law between an attorney and his client, and nothing in this article shall be construed to require any such privileged communications to be disclosed.”

Published on: August 9, 2012

Court Discusses Supplemental Needs Trust

by Stephen Bilkis

This is a probate proceeding in regard to the deceased, Edward R. Barclay’s will. The case is being heard in the Surrogate’s Court of the State of New York in Nassau County. The judge in the case is John B. Riordan.

Probate Issues

In this particular probate case there are two issues set before the court. The first issue is that the spouse of the decedent, Josephine M. Barclay, is in opposition of the preliminary letters being granted to Peter and Kathleen Hesse. Additionally, Ms. Barclay has moved to revoke her waiver and consent.

Published on: August 8, 2012

Petitioner Objects to Jurisdiction

by Stephen Bilkis

This is a matter concerning the last will and testament of the deceased Kate Freeman Clark. The case is being heard in the Surrogates Court of Suffolk County.

Motion

The motion that is before the court is to have the probate proceeding in this court dismissed and surrendered to the Chancery Court of Marshal County in the state of Mississippi. The motion asks for this court to give up its jurisdiction in the case. The Surrogate Court of Suffolk County took jurisdiction in this case under section 45 of Subdivision 3 as the decedent left a considerable amount of personal property within this county.