New York Probate and Estate Administration Lawyer Blog

Published on: December 5, 2016

Petitioner Seeks Payment from Annuity Plan

by Stephen Bilkis

In 1970 a group annuity contract plan was entered into by defendant Company and a hospital as contract holder. On April 25, 1972, the company issued its certificate to a doctor, which named him as a participant in that group annuity plan.

The certificate had originally been issued on April 4, 1972, with the same designated beneficiaries, but the name was misspelled. In a handwritten note, a request was made to correct the spelling and as a result, company issued the corrected certificate dated April 25, 1972, referred to supra.

The decedent, who was the first wife and the mother of their two sons, died on August 23, 1973. Approximately one year after her death the doctor remarried. His new wife was the plaintiff in this action. The doctor died in February 1979 and his will, executed March 3, 1976, was admitted to probate in March 1979.

Published on: November 30, 2016

Court Looks at Jurisdiction Issue While Probating an Estate

by Stephen Bilkis

In an action to recover damages for medical malpractice and lack of informed consent, etc., in which the defendant SSS Medical Center commenced a third-party action against KC, as successor executor of the estate of Mr. RR, KC appeals from an order of the Supreme Court, dated May 1, 2009, which, inter alia, denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of Mr. RR terminated by operation of law.

On July 18, 2002, the plaintiff Mr. T underwent surgery at SSS Heights Medical Center (hereinafter SSS), and Mr. RR served as his anesthesiologist. Mr. RR died on October 1, 2002. On October 21, 2002, Mr. RR’s father, Mr. X, as executor of Mr. RR’s estate, petitioned the Surrogate’s Court, New York County, to have Mr. RR’s will admitted to probate. The petition to admit the will to probate stated that Mr. RR died while a domiciliary of New York, and that KC was named in the will as successor executor. By decree dated November 25, 2002, the will was admitted to probate, and on November 26, 2002, letters testamentary were issued to Mr. X. Thereafter, Mr. X died.

In 2003 the plaintiffs commenced the main action against, among others, SSS. In 2008, SSS commenced the instant third-party action against KC (hereinafter the appellant), as successor executor of Mr. RR’s estate, seeking common-law indemnification. The appellant, a resident of Colorado, retained Colorado attorneys X&Y. On behalf of their client, X&Y entered a stipulation with SSS, in which, inter alia, the appellant admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for Mr. RR. The stipulation also stated that SSS “will seek no recovery from the Estate of Mr. RR, M.D., except to the extent of any professional liability insurance available to the Estate of Mr. RR, M.D., deceased.”

Published on: November 18, 2016

Counterclaim Filed for Surrender of Bank Passbook

by Stephen Bilkis

Motion is made to strike out a counterclaim interposed in this action wherein plaintiff seeks to compel defendants to deliver to her a bank passbook of an account in the Interest Department of the ABC Trust Company of Albany issued to and opened in the name of ‘Ms. B, in Trust for Ms. OD.’

Ms. OD is the plaintiff and Ms. B is now deceased. The defendant Mrs. V is the named executrix in the last will and testament of Ms. B, which has been offered for, but as yet has not been admitted to, probate. The co-defendant Mrs. M, an attorney, drew such will, was a subscribing witness thereto, and is acting as the attorney for Mrs. V in offering it for probate. It is alleged that such defendants have possession of the passbook, without which plaintiff cannot withdraw the fund, and that they have refused to deliver it to her upon demand.

The defendants’ answer admits all of the allegations of the complaint except that plaintiff ‘is entitled to possession of the said bank book’ and it also contains certain matter asserted as ‘a separate defense and by way of counterclaim.’ In that contention defendants allege the opening of the account by Ms. B in form in trust for plaintiff, as well as the making of the will hereinabove referred to. They further allege that objections to the probate of the will have been made by certain persons, to wit, KK, QQ and ET, who would be the intestate distributees of Ms. B, of whom plaintiff is not one; that such objections, among other things, challenge her testamentary capacity; that the funds going into the bank deposit set up for plaintiff derived from a sale of real property of the deceased, and that no part thereof ‘was produced or provided by the said Ms. OD;’ that the bank account was set up approximately two months prior to the execution of the will; that if such objections to it are sustained the validity of the disposition of the aforesaid bank account likewise will be attacked; that the defendants have been presented with adverse claims to the funds represented by such bank account by both plaintiff and such distributees of Ms. B, and that they ‘cannot determine, without hazard to themselves, the right of the said persons to the said property and are exposed to double liability as the result of such adverse claims.’ Defendants assert their willingness to deliver the passbook and the fund it represents to whomsoever shall be adjudged entitled to it. They allege that they have impleaded the distributees who make the adverse claims as aforesaid by service upon them of a summons and interpleading complaint, together with a copy of the original summons and complaint served upon them in this action.’

Published on: November 15, 2016

Court Discusses Will Interpretation

by Stephen Bilkis

In a contested probate proceeding, the Objectant appeal from a decree of the Surrogate’s Court, Kings County and dated March 17, 1993, which, after a nonjury trial, inter alia, granted probate of a certain will signed by the testator on March 17, 1987. Also, the Objectant raises the issue that in case the probate is granted, construction must be made in some of the provision of the will.

After trial on the issue of denial of probate of the will, the court ordered for its denial. The Court explained that, there was no evidence of a meeting of the minds between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character see, EPTL 3-2.1[a][3]; see also, Matter of Pulvermacher, 305 N.Y. 378, 383, 113 N.E.2d 525; Matter of Turell, 166 N.Y. 330, 337, 59 N.E. 910).

The courts commonly say that where will construction is at issue, they will first consider the decedent’s intent, which can be derived from reading the will and considering the circumstances from which it was created 11 Warren Heaton’s on Surrogate Court Practice 187.01 [3][a] (7th ed Mathew Bender).

Published on: November 8, 2016

Court Discusses Relation Back Doctrine in Probate Matter

by Stephen Bilkis

At issue in this proceeding is the right of the trustees of the estate of the donor of a power of appointment to commissions for paying out the appointive property to trustees appointed under the will of the donee of such power.

Testator Mr. S died in 1952. His will admitted to probate in this Court created out of his residuary estate a marital deduction trust for his wife Mrs. S–one coupled with a general testamentary power of appointment. For later discussion, it is observed that under such a power Mrs. S could appoint to her estate or to her creditors or to creditors of her estate or to any other person she may wish. Under the express terms of the will she could also appoint outright or in further trust.

Mrs. S died on June 11, 1969, a resident of Connecticut. Her will has been admitted to probate in the Connecticut courts. By her will she expressly exercised her power of appointment. She first directed her own trustees to pay out of the appointive property all estate taxes on both the appointive property and her own estate assets. She then directed her Own trustees to divide the remaining principal of the appointive property into four shares, each such share to be held in further trust for her four grandchildren with remainder over to her great grandchildren. There are ten such great grandchildren remaindermen represented in this proceeding by a guardian ad litem. Mrs. S appointed as her own trustees the same persons who were already acting as trustees under Mr. S’s will.

Published on: November 3, 2016

Court Discusses Appeal Based on Forum Non Conveniens.

by Stephen Bilkis

The case involves three issues, first, the probate of a will despite absence of witness to testify for the authenticity of the will. Second, the disallowance of a will alleged to have made under undue influence by the decedent’s heirs. Third, the denial of appeal based on forum non conveniens.

On the first issue, the Court ruled that the propounded instrument offered for probate dated March 28, 1925 was executed thirty-eight years ago. Proof has been submitted that one of the subscribing witnesses is deceased and the whereabouts of the other witness is unknown. The genuineness of decedent’s handwriting and of the deceased witnesses has been proved.

The missing witness had been associated with decedent for approximately two years prior to the execution of the propounded instrument. Thereafter, he had expressed an intention to return to his native country of Scotland. Due to the long span of years since the execution of the instrument proof of the handwriting of the witness could not be obtained despite diligent efforts by proponent to do so.

Published on: October 23, 2016

In re: The application of Giovanna BAJIC and Angela Franke for Construction of a will for Marianna Bonanno, Deceased.

by Stephen Bilkis

Surrogate Court, Queens City, NY

February 2, 2016

Decedent passed away on August 29, 2002, and is survived by 4 children. Her 2 daughters are the petitioners, and one of her sons is the objectant. The other son is the executor of the estate.

Published on: October 20, 2016

Court Discusses Release of Confidential Information in Decedent’s Will

by Stephen Bilkis

In this probate proceeding, respondents Mr. AX and Mrs. AXW move to compel the co-executors of the estate, Mrs. JA, the surviving spouse of decedent, and Mr. K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. JM, Esq., and; (3) un-redacted photocopies of notes taken by Mr. JM during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.

In opposition to respondents’ motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. JM represented both decedent and decedent’s surviving spouse, Mrs. JA, in connection with their estate plan, and had confidential communications with decedent and Mrs. JA, jointly and individually, concerning Mrs. JA’s estate plan and assets, and that the contents of those communications concerning Mrs. JA’s estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties.

In actions involving the probate, validity or construction of a will, an attorney or his employee is required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. Respondents contend in their motion that these documents are not privileged as they contain information pertaining to the decedent and his will that the executors are required to disclose.

Published on: October 12, 2016

Court Discusses NY Estate Tax Law 249

by Stephen Bilkis

This is a motion filed by the executrix requesting the Surrogate to fix the New York estate tax – Tax Law § 249–w.

The executrix made a motion to fix the tax returnable on 16 March 1972. While the State Tax Commission was duly served, no order fixing the tax has, 2 years and 9 months later, been submitted to the Surrogate. The executrix requests the Surrogate to act in his judicial, rather than administrative capacity, and to fix the tax.

The Commission appeared but made no response, formal or informal, to the relief requested by the taxpayer.

Published on: October 9, 2016

Court Discusses Whether a Power of Attorney was Valid

by Stephen Bilkis

This is an appeal brought before the Supreme Court, Appellate Division, Second Department, Kings County.

The issue here is (1) whether a power of attorney which conferred limited realty management powers upon JSF was one “relating to an interest in a decedent’s estate” and was therefore ineffective under EPTL 13-2.3 for failure to record it in the Surrogate’s Court, and (2) whether plaintiff LCC, a corporation dissolved by proclamation of the Secretary of State for nonpayment of franchise taxes in 1978, had capacity to bring this action to enforce obligations arising out of prohibited new business conducted five years after dissolution.

The court concluded that the power of attorney was not ineffective for failure to record in the Surrogate’s Court, and that the plaintiff lacked the capacity to institute this action.