New York Probate and Estate Administration Lawyer Blog

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Court Decides Whether 1958 Will has been Revoked- In re Grant’s Will, 334 N.Y.S.2d 780 (N.Y. Surr.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: July 1, 2017

Nonresident asked to Furnish Security Costs Under Section 282 of Surrogate’s Court Act

by Stephen Bilkis

The proponent moves for an order directing the respondent, to furnish security for costs pursuant to section 282 of the Surrogate’s Court Act, on the ground that he is a nonresident. The respondent opposes the motion on the ground that: “An examination of the records of this court will reveal that the said respondent merely filed a notice of appearance herein. He filed no answer”.

The proponent alleges that his attorney was served with a copy of respondent’s objections to the propounded instrument The records, however, do not disclose the filing of the original objections (Surrogate’s Ct. Act, Â§ 147) with proof of service thereof (Kings Co. Surrogate’s Ct., rule XIII), nor the payment of the filing fee required therefor (Surrogate’s Ct. Act, Â§ 29-a, subd. 15).

The primary issue presented, therefore is whether the facts stated constitute the respondent a contestant within the purview of section 282 of the Surrogate’s Court Act, which provides: “282. In any proceeding where an issue is raised by answer or objection by or on behalf of a nonresident of the state of New York against the proponent of a will such proponent shall be entitled in the discretion of the surrogate to have the person or persons raising such issue give security for costs.” That section further provides that the Surrogate may dismiss the “objections” or “answer” if the order granting the motion be not complied with.

Published on: June 24, 2017

Is Service of Process on a Public Administrator Sufficient to Confer Personal Jurisdiction?

by Stephen Bilkis

The unique issue before the court is whether service of process upon the Public Administrator is sufficient to confer personal jurisdiction over an estate: (a) which petitioner claims is worth less than $10,000, (b) where no probate proceeding has been initiated and (c) where no letters of administration have been issued. The Public Administrator has specially appeared in this proceeding to contest service of process upon it on behalf of the named estate respondent. Co-Respondent seeks dismissal of the entire proceeding based upon petitioner’s failure to serve a necessary party, to wit: the estate.

The Petitioner is a cooperative housing company organized under the Mitchell-Lama law. Pursuant to the Rules and Regulations governing such cooperative, on August 14, 1991 petitioner obtained a certificate of eviction from HPD authorizing petitioner “to immediately commence any legal proceedings deemed appropriate for the termination of a tenancy” against both “the Tenant (deceased) and co-respondent Occupant.” The certificate of eviction mentions in part that co-respondent who also appeared as a respondent in the administrative proceeding, submitted to the administrative tribunal a will purportedly made by the tenant in which the co-respondent’s daughter and co-respondent are named as the sole beneficiaries. The administrative tribunal rejected his argument that as his mother’s beneficiary he was entitled to live in the apartment.

It is uncontested that the aforementioned will was never admitted to probate and that otherwise no estate representative, either permanent or temporary, was ever appointed by the Surrogates Court. Petitioner thereafter commenced this summary dispossess-holdover proceeding. Service upon the estate of the decedent was made by service upon the Public Administrator.

Published on: June 24, 2017

Court Discusses Executive Estoppel

by Stephen Bilkis

Indicted for multiple counts of handgun possession and a single count of possession of weapons with intent to sell, the defendant, waived a jury and the case was tried by the court. Decision was reserved pending submission of briefs. This is the decision and its reasoning.

The case could have been tried on an agreed statement of facts; the only issue for the court to decide and upon which my decision turns is the defendant’s state of mind during the time he purchased and stored the handguns. On April 15, 1985, pursuant to a search warrant, officers of the New York City Police Department searched the defendant’s room in a YMCA and recovered 14 handguns and a quantity of ammunition. The defendant had been employed as a cab driver and hoped to open a sporting goods store; the weapons had been purchased as stock for the yet to be opened store. The police learned of his cache through his procurement of the necessary federal licenses to make the initial wholesale purchases.

On March 25, 1985, a federal inspector visited his room at the “Y” to conduct an administrative inspection of the premises listed on the defendant’s federal firearm’s license; two citations resulted. Defendant contested the citations in the form of a “Notice of disagreement” wherein he argued that since he was not presently conducting a retail business in his YMCA room, he was not in violation of the particular regulations; he served the notice upon both the federal agency and the Police License Bureau. The visit of April 15 was the official response.

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 14, 2017

Court Revisits Unusually Complicated Will Construction Issue

by Stephen Bilkis

The proceeding before the court is one for construction of paragraph “THIRD” of the will of the decedent. It has a long and checkered history before the court. The facts, not complex in themselves, but made so because of the number of parties and their constantly altering positions, unfortunately, requires review in detail to do justice to all. The legal issues presented are unusual and present questions of procedure as well as substance, not typically found in probate proceedings.

Under paragraph THIRD of his will, the testator bequeathed his residuary estate, valued upon the accounting at $50,393.65, to “The Franciscan Fathers, Christ the King Seminary, St. Bonaventure University, Olean, New York, with the request that High Masses be said for the repose of my Soul and the repose of the Soul of my said wife “. The question of the identity of the residuary legatee or legatees first arose on proceedings for judicial settlement.

On October 18, 1976, court was convened on the construction proceeding pursuant to order for the purpose of taking such proof and making such decree as justice requires pursuant to provisions of Sec. 1420, Subd. (1) of SCPA. The attorney for the executrix was called as a witness. His testimony, given without objection, was as follows: He was the scrivener of the will; he had known the testator and his wife for several years and had been their attorney on prior occasions; he had drawn the will of the testator’s wife as well as the testator; the testator’s wife for several years had been an employee of one of the Franciscan Friars at St. Bonaventure University; illness had compelled her to cease her employment immediately before the wills were prepared; under her will, the wife provided for a legacy to the Friars at St. Bonaventure University; the testator and his wife were very close; the provisions for the bequest of the residuary estate of the testator’s will had been influenced by his wife’s position.

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: June 7, 2017

Petitioner Seeks Final Judicial Settlement of Accounts

by Stephen Bilkis

Petitioner seeks a final judicial settlement of its accounts as Executor under the last Will and Testament of the deceased. As a part of the judicial settlement, petitioner requests this Surrogate’s Court to direct by appropriate order that future payments of support to decedent’s surviving first wife be made an obligation of the Trustee of decedent’s residuary estate and payable from the income and, if necessary, the principal of that residuary trust.

It appears without dispute that by an agreement dated October 10, 1952, decedent assumed an obligation to pay the sum of $300 a month to his first wife, for her support. It was provided that such monthly payments were to continue for the lifetime of the first wife. The Executor properly concluded that the obligation for payment survived the decedent and was binding upon the estate. The agreement is valid and enforceable. The accounts of the Executor disclose that the required payments have been considered as periodically accruing debts and have been paid monthly by the Executor throughout the administration of the estate.

In this accounting proceeding, provisions for future payments of support to decedent’s first wife are required. It is axiomatic that these provisions must comply with the applicable statutes and fairly resolve the equities of all parties concerned. Proceeding within this general framework, an examination of relevant statutory provisions is first in order.

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.