New York Probate and Estate Administration Lawyer Blog

Published on: August 12, 2017

Son Petitioner Brings Action for Will Construction Issue – Sparacio’s Estate, Matter of, 402 N.Y.S.2d 857 (N.Y. App. Div., 1978)

by Stephen Bilkis

In this case the Supreme Court considered whether a decedent’s intention was to make a testamentary gift or if the language was actually precatory. If the language was precatory, it is optional, and the executors are not required to enforce it. On the other hand, if the language was mandatory, then the executors are required to enforce it.

Sparacio, a well-known attorney and professor of law, died on June 5, 1973. He left a handwritten will dated April 22, 1970. In it he named all three of his adult children as executors of his will and as residuary legatees. While the will was a handwritten one, it was not a holographic will. A holographic will is one that is handwritten and signed by the testator, but not witnessed. Sparacio dictated the will to one of his daughters who wrote it out in longhand. His other daughter was present.

In the will he left his daughter M. Sparacio his house and its decorative contents. The will also stated that it is his “wish and desire” that the other daughter, E. Maroshick, share in the contents of the house. Because the language as to how the contents of the house was to be distributed was unclear and the daughters were not able to settle the matter amicably, the decedent’s son petitioned the Surrogate’s Court for a construction. The Surrogate’s Court ordered the parties to submit a list of the “decorative contents” and for them to figure out a way to divide the property. The court further ordered that if they could not agree, then it would appoint a referee to supervise the division of the property. M. Sparacio appealed the Surrogate’s Court decision.

Published on: August 5, 2017

Plaintiff Moves to Set Aside Assignment of Mortgage

by Stephen Bilkis

This is an action against defendant and others to set aside an assignment of a mortgage made to cancel a certificate and record of the satisfaction of such mortgage, to declare said mortgage a lien on the mortgaged premises, to reinstate it on the record, and to foreclose it.

The purpose of this action was to set aside an assignment of a mortgage made by the defendant, as trustee; to cancel a certificate and the record of the satisfaction of such mortgage made by the assignee, and recorded in the office of the register of Kings county; to declare the mortgage thus assigned, which was made by the defendant to the co-defendant, a lien upon the mortgaged premises; to reinstate it upon the record; and to foreclose it when thus reinstated.

The decedent died October 28, 1877, leaving a last will and testament, which was admitted to probate in January, 1878. It, in effect, provided that his executors should, out of his estate, invest $6,000 in bonds and mortgages on unincumbered real estate of twice the value of the amount loaned, at interest at the rate of 7 per cent. per annum, payable semiannually, for the benefit of his two minor children; the income, however, to be paid, a certain proportion to his mother, and the remainder to his sister, during their lives. Upon their death, or the death of either of them, the legacy given to her was to cease, and the interest upon the $6,000 was to be from time to time collected, controlled, managed, and held in trust by a trustee named, for the benefit of such children, until they should respectively reach their majority, and in such manner as to yield the greatest aggregate increase.

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 31, 2017

Court Hears Trustees’ Accounting and Determines the Validity of Power of Appointment

by Stephen Bilkis

This is a trustees’ accounting and, as an incident thereto, the Court is required to determine the validity of the exercise of the power of appointment granted in article ‘Eighth’ of the testator’s will to his daughter as appointee.

The testator died May 11, 1933, leaving a will which was admitted to probate. By article ‘Eighth’ he created a trust of a fund, the income of which was to be paid to his daughter during her lifetime and upon her death the principal was to be paid to such persons as she designated by her last will, and should she die intestate, to those persons who at the time of her death shall constitute her next of kin. The residual provision contained in article ‘Eleventh’ of the said will provides for an identical disposition of the portion of said residual fund bequeathed to the daughter.

The daughter died a resident of Kings County on September 9, 1957, and under article ‘Fifth’ of her will she attempted to exercise the power of appointment of the corpus of the trust created for her benefit by dividing the same into as many shares as her son may leave issue living at her death which shares were to be held in trust for their respective lives, the income to be paid them from time to time and upon the death of each beneficiary the principal to their issue or, in default of issue, to the remaining children per stirpes. The children of the testator’s grandson, the only issue of the daughter are four infants, each under fourteen years of age, all of whom were born subsequent to testator’s death.

Published on: July 29, 2017

Surviving Trustees Bring an Action for Judicial Settlement of Account

by Stephen Bilkis

This is a proceeding (Article 79, Civil Practice Act) for the judicial settlement of their account as surviving trustees of an express trust created by the decedent in a letter writing dated March 10, 1902, and for the construction of the trust instrument in conjunction with the will of the decedent for whose immediate benefit the trust was created.

In March, 1902 decedent had four sons. On March 10th of that year he established the instant trust in a letter addressed to a son and a few days later delivered the securities constituting the corpus of the trust to his other sons as trustees.

The settlor augmented the corpus of the trust pursuant to instruments executed in 1905, 1907, 1909, 1910 and 1911. On December 24, 1909 the sons, as trustees, properly designated their brother Samuel (now a co-petitioner) as a co-trustee.

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 22, 2017

Case Reviews Rules of Will Construction

by Stephen Bilkis

In this probate case, a trustee bank, requests for the construction of an article of the will of herein decedent.

A Kings County Probate Lawyer said that decedent died in 1949 leaving a will which he had executed in 1919, some 30 years before his death which was duly admitted to probate. In Article THIRD, the will created a trust for the life income benefit of testator’s wife. Upon her death, the principal was to be paid to son and if he should predecease to his issue. In fact, the son predeceased the testator himself as well as his mother the income beneficiary without issue. It that contingency, the will directed the Trustee– ‘to pay over, transfer and deliver the principal of the trust fund to and among my next of kin in equal shares but Per stirpes and not Per capita.’

The direction is clearly to distribute the principal among Testator’s next of kin. The issue is–‘as of what date are the next of kin to be determined (1) 1919 the date of execution of the will; (2) 1949 the date of testator’s death or (3) 1975 the date of death of the income beneficiary, testator’s wife?’

Published on: July 16, 2017

Proceeding Examines Using Attesting Witnesses in Probate Cases

by Stephen Bilkis

In this probate proceeding examinations of attesting witnesses have been held and on October 6, 1997 the examination of the surviving spouse, the named executrix and proponent of the will, was scheduled as part of the SCPA 1404 examination under a recent amendment which authorizes the examination of the executor and proponent prior to the filing of objections if the will offered for probate contains an in terrorem or no contest clause as this will does.

Present at the time of the examination was a reporter from Newsday who insisted on being present during the examination of the surviving spouse to which the attorneys for the parties objected. The court requested counsel to adjourn the deposition so as to permit Newsday an opportunity to submit its position in writing. Subsequently, counsel for Newsday filed with the court a letter dated October 9, 1997 citing In the Matter of the Estate of Daniel P. O’Connell, 90 Misc.2d 555, 394 N.Y.S.2d 816, which holds that an examination of attesting witnesses to a will is a “sitting” of the court for purposes of section 4 of the Judiciary Law providing that sittings in every court should be public except for specific proceedings. The O’Connell court stated, in part, that such an examination of attesting witnesses is held before this court with all parties attending, with a court stenographer present and subject to all of the applicable rules of evidence. It is thus a sitting of this court which should be open to the public.

On the other hand, it is clear that if examinations under SCPA 1404 are in the nature of depositions, then the cases have consistently denied the press access to such pre-trial proceedings.

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.’