New York Probate and Estate Administration Lawyer Blog

The defendant moves for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action. The motion is granted.

The complaint alleges that plaintiffs are sons of the decedent, there is no indication that they are the only children, and that decedent prior to her death employed the defendant, an attorney, to prepare a will for her execution. It is claimed that decedent directed the defendant to provide for a residuary clause naming plaintiffs as legatees thereof. The decedent could neither read nor write English and she executed the will relying, it is claimed, on defendant’s representation that the residuary clause had been prepared as directed whereas, in fact, the residuary clause was omitted from the will. Although decedent has been dead since January 30, 1961, there is no allegation that the purported will has been admitted to or offered for probate. No copy of the purported will is attached to the complaint nor are any of its provisions pleaded so that the court may know what provisions, if any, were made for the plaintiffs in the purported will. No allegation is made as to the identity of the decedent’s heirs-at-law who would succeed to the residuary estate in the absence of a provision for the disposition thereof in the will.

Plaintiffs urge the sufficiency of their complaint on the basis of two California cases, Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358 and Lucas v. Hamm, Cal.App., 11 Cal.Rptr. 727; 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685. They claim that Goldberg v. Bosworth, 29 Misc.2d 1057, 215 N.Y.S.2d 849 (Special Term, Supreme Court, Kings County, 1961) follows the California decisions.

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This is a motion for an order directing the proponent, who is decedent’s widow, to appear for an examination before trial to enable petitioner to frame objections to the propounded instrument bearing date March 10, 1961, and for other relief.

The filing of a petition and service of a citation in a Surrogate’s Court proceeding is analogous to the service of a summons and complaint in an action brought in a court of record pursuant to the Civil Practice Act. Under Article 29 of the Civil Practice Act, § 288 et seq. and the Rules of Civil Practice, a party served with a summons and complaint may be afforded an examination of the complainant or other party in order to frame an answer (Cuban Telephone Co. v. Conklin, 196 App.Div. 463, 187 N.Y.S. 817). Movant, petitioner herein, is one of decedent’s distributees named in the propounded instrument, and in the probate petition and the citation served upon her. Movant is in the position of a defendant served with a summons and complaint, while proponent may be compared to a plaintiff in such an action. The fact that a pro forma answer in the nature of a general denial may be filed is no bar to such examination since a defendant may not know at the time whether he wishes to defend at all (Cuban Telephone Co. v. Conklin, 196 App.Div. 463, 465, 466, 187 N.Y.S. 817, 818, supra; Boyd v. Boyd, 276 App.Div. 1013 1014, 95 N.Y.S.2d 268, 269; Public National Bank v. National City Bank, 261 N.Y. 316-319-320, 185 N.E. 395-396; St. John v. Putnam, 128 Misc. 707, 220 N.Y.S. 146) . The present application is somewhat analogous thereto. The provisions of the Civil Practice Act apply to proceedings in the Surrogate’s Court (Surrogate’s Court Act, § 316).

The Surrogate has incidental powers with respect to ‘all matters subject to the cognizance of the court, according to the course and practice of a court having common law jurisdiction of such matters, except as otherwise prescribed by statute’. The Court of Appeals in one case, 248 N.Y. 67, at page 72, 161 N.E. 421, at page 423, said, ‘the powers that are specific shall hereafter be read as being ‘in addition to and without limitation or restriction on’ the powers that are general.’ Surrogate’s Court Act, § 20, subd. 11. Section 40 of the Surrogate’s Court Act confers jurisdiction upon the Court to administer justice in all matters relating to the affairs of decedents, as to any and all matters necessary to be determined in order to effect complete disposition of the matter.

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The petition presents an issue under the doctrine of ‘incorporation by reference’ as applied to wills. The petitioner a sister of the testator, presents an unwitnessed holographic instrument executed January 9, 1968 (‘January instrument’) and also a duly executed instrument (which has been proved as a will) dated February 20, 1968 (‘February will’).

The January holographic instrument necessarily must be denied probate. It was executed in New York; the decedent was not a member of the armed forces; it is unwitnessed. (EPTL 3–2.2, 3–2.1.) As already noted the February will has been duly proved. The January instrument disposes ‘of my entire personal estate’ to the petitioner.

The February will provides: ‘FIRST: I ratify and confirm all wills heretofore made by me at any time in every respect, except insofar as the same is inconsistent with the provisions of this codicil. SECOND: I direct that any monies realized from any and all Stocks and Bonds in my name be divided equally between: (listing three brothers and his sister petitioner herein).’

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This is an application for limited letters of temporary estate administration. Decedent executed a will in Ireland which was witnessed by the manager for the United States Lines in Ireland and the American Consul in Cork. Beside a small bequest to a friend, the entire residuary is bequeathed to the decedent’s granddaughter. The will does not name an executor. The decedent’s granddaughter petitions for probate of the will and for letters of administration c. t. a. She makes this motion for limited letters of temporary estate administration so that she can commence an action against the United States Lines before the statute of limitations runs out. This motion is opposed by one of two sisters who are distributees of decedent, on the ground that the wrongful death suit is ‘exclusively for the benefit of the decedent’s wife, husband, parent, child or dependent relative.’ She argues that the decedent’s granddaughter is none of these and that under section 118 of the Surrogate’s Court Act, letters should issue to a distributee, namely, herself, so that she might bring the action against the steamship line.

The applicable federal statute provides that the action shall be maintained by the personal representative of the decedent (Title 46, Sec. 761, U.S.C.A.). Since it appears that the will of decedent is uncontested and that on its probate the decedent’s granddaughter would be entitled to letters of administration c. t. a. as the sole residuary legatee (Surrogate’s Ct. Act, § 133, subd. 2) and would be the person authorized under the federal statute to prosecute the action, the Court will appoint her Temporary Administratrix under Limited Letters, upon qualifying according to law. Upon the will being admitted to probate, the Temporary Letters will be revoked and letters of administration c. t. a. will issue to the decedent’s granddaughter nning. Settle decree on notice.

In another case, a lawyer said that a probate proceeding petitioner claims that under the terms of the propounded instrument she is entitled to decedent’s net estate and to letters testamentary. The respondents have appeared and filed their consent to probate the instrument, but dispute petitioner’s claim. A construction is requested to determine whether the provisions of paragraph ‘Fourth’ are operative and dispose of decedent’s estate.

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This is a probate case where the decedent died on May 1, 2004, leaving a will which was admitted to probate on July 7, 2004. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of the children. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to Executor on July 7, 2004.

The son originally filed a First and Final Accounting of his proceedings covering the period May 1, 2004 through January 31, 2008. Thereafter, he filed a document which covers the period from May 1, 2004 to January 31, 2008, the same period covered by the First and Final Accounting. The Interim Account was verified by the son on February 18, 2009, nearly one year after the First and Final Account.

Another son filed objections to the accounting which raised several issues. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent make a loan to the oppositor In addition, the parties acknowledged that administrator son took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

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In this estate proceeding, an Order and decree, Surrogate’s Court, New York County, entered on or about May 22, 1995, which removed the preliminary coexecutors, and appointed the lawyer and a Trust Company as temporary administrators, affirmed, without costs.

The Surrogate’s removal of the preliminary coexecutors pursuant to SCPA 711 and 719 was a proper exercise of discretion, and no evidentiary hearing was required under the particular circumstances. While the Surrogate’s characterization of the facts as “undisputed” may not have been technically accurate, the unfitness of the coexecutors was established by a combination of documentary proof and the coexecutors’ own concessions, and the totality of written submissions failed to raise any triable issue of fact. We note that the coexecutors were not prejudiced in any manner by the informality of the investigation and report completed by limited temporary administrator, since the Surrogate’s decision expressly disclaimed reliance on the report’s unproven allegations.

The unfitness of the coexecutors to take responsibility for this $1.2 billion estate, bequeathed primarily to charity, was manifest. While “courts will not undertake to make a better will nor name a better executor for the testator, the standard of behavior of a fiduciary is “[n]ot honesty alone, but the punctilio of an honor the most sensitive”.

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This is a proceeding to construe the last will and testament of a testatrix who died on April 18, 2010, survived by five children. Her will, dated September 1, 2006 (the “Will”), was admitted to probate on July 2, 2010 and letters testamentary issued to petitioner, one of her children. Article SECOND of the Will established a credit shelter trust for her husband, with remainder to her children. Article THREE left the “rest, residue and remainder” of her estate to her husband outright. Her husband predeceased her and she provided in Article FOURTH that if her husband predeceased her, she left “all the rest, residue and remainder of my estate, real, personal and mixed and wheresoever situated”

The estate is sufficiently large to generate a New York State estate tax. Article FIFTH of the will provides that “All estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of my estate”. The executor asks that the Court construe the gift to real property to the devisee in Article FOURTH(A) as a preresiduary gift and the remainder clause of Article FOURTH(B) as the residuary estate. The executor brings this construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

In the Will in question, Article FIFTH directs that the payment of estate taxes be paid from the residuary estate. The problem is that the Will contains two residuary clauses. The first is found in the preamble to Article FOURTH, which disposes of the “all rest, residue and remainder of my estate, real , personal and mixed and wheresoever situated” of the testator’s estate if the testator’s husband predeceased the testator. The second is Article FOURTH(B), which purports to dispose of the “rest and remainder” of the testator’s estate after the devise of real property in Article FOURTH(A).

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