New York Probate and Estate Administration Lawyer Blog

Published on: September 27, 2016

Matter of Hickey

by Stephen Bilkis

NY Slip OP 05895-August 25, 2016

The decedent died on July 14, 2016, without a plan for what would happen to his law office in the event of his passing. The local bar association, Tompkins County Bar Association(TCBA) moved for an Order to appoint a lawyer as a custodian of the files in decedent’s office in order to protect the decedent’s clients. TCBA also moves (Rules of Professional Conduct 22 NYCRR 1200.0) Rule 1.15 (g) for a lawyer to be appointed as a successor signatory for the decedent’s clients. The Lawyers Fund for Client Protection and The Committee on Professional Standards did not oppose.

The Court granted the motion and the TCBA was appointed as the custodian of the law firm (Matter of Van Zandt 53 AD 3d 982[2008]). The issue of a successor signatory for the decedent’s law firm was denied with the appropriate application made to the Supreme Court (Rules of Professional Conduct [22 NYCRR 1200] Rule 1.5 [g][2].

Published on: September 24, 2016

Appellate Court Decides Validity of Duplicate Wills

by Stephen Bilkis

In re: Lewis NY Slip Op 04674

In this case, the decedent RL, left no will. Letters of Administration were issued to her parents. The parents had renounced their interest in the estate in favor of the decedent’s brothers, RL and JL. There was a piece of property that would have stayed in the family, but for a subsequent will that was admitted to probate. That will left her estate to her ex-husband and named him as the executor.

This case was brought to the court, not by the ex-husband (he was disqualified by divorce), but by RL’s former father in law, who was named as an alternate executor and beneficiary. The father in law was not disqualified under the laws of New York which governs the decedent’s real property. This property was the main and significant asset of RL’s estate. Both the decedent’s parents and brothers filed objections.

Published on: August 15, 2016

Petitioner Seeks Limited Letters of Estate Administration

by Stephen Bilkis

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, in 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.

Published on: August 14, 2016

Executrix Petitions for the Construction of a Will

by Stephen Bilkis

On December 2, 1999 a will was admitted to probate on August 16, 2001, reads as follows: “All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate.” There is no more. The name of the intended beneficiary of the residuary is missing. As a practical matter, the residuary clause amounts to only 10% of the estate, since the will made pre-residuary bequests of 90% of the net estate.

Petitioner as executrix of the will, has petitioned for construction of the will by reading the residuary clause to be the same as decedent’s prior will dated June 18, 1997. The residuary clause of the 1997 will provided: “All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate I give, devise and bequeath to my nephew, per stirpes. In the event that my nephew, does not survive me, his share shall go to his wife.”

The nephew died on November 25, 2000, without issue and testator died on November 30, 2000. The persons who would take the decedent’s estate in intestacy are a niece, and a great nephew. The niece has filed a consent to the relief requested in the petition for construction. The nephew defaulted in appearing on the return day of the proceeding.

Published on: August 13, 2016

Court Interpretes Living Trust

by Stephen Bilkis

There are three proceedings pending in the estate of the decedent: (1) a miscellaneous proceeding to declare the decedent’s Living Trust dated March 19, 2001 invalid; (2) a proceeding to probate an instrument dated March 19, 2001 as the decedent’s last will and testament; and (3) a proceeding by respondent as trustee of the decedent’s Living Trust dated March 19, 2001, to judicially settle his account for the period from March 19, 2001 to May 9, 2007. On July 1, 2010, the court appointed a guardian ad litem for one of the decedent’s daughters, in all three proceedings.

The decedent died on May 9, 2007, survived by four distributees: two daughters, a son; and a granddaughter, the only child of the decedent’s predeceased son. The propounded will pours over to the living trust. The living trust provides only for the son, specifically omits the two daughters, and does not mention the granddaughter.

A Kings County Probate Lawyer said that, the guardian ad litem has filed a preliminary report in which he details his findings to date and, based upon them, recommends that he continue to represent his ward’s interests in all three proceedings. The guardian ad litem reports that the daughter has alleged that the son exerted undue influence and fraud upon the decedent at a time when he was physically ill and depressed. The guardian ad litem states that, based on his investigation, he deems it appropriate to participate in the SCPA 1404 examinations in the probate proceeding and to continue to represent his ward’s interests in all three proceedings. The court agrees with his conclusions.

Published on: August 12, 2016

Petitioner Seeks to Compel Production of Wills

by Stephen Bilkis

In these two proceedings to compel the production of the wills of the testator, ask the court to seal the documents which have been produced by the respondent.

By petitions dated July 25, 2008, petitioners sought to compel the New York City Police Department (NYPD) to produce documents in their possession purporting to be the wills of the testator. Pursuant to SCPA 1401, the court directed the NYPD to produce any documents in their possession purporting to be the decedents’ wills in court on August 12, 2008.

On August 12, 2008, counsel for the petitioners, counsel for the testator’s parents, and counsel for the NYPD appeared in court. The NYPD complied with the order and turned over the documents to the court. Asserting that matters contained in the documents may cause embarrassment to the decedents and their families, the petitioners, joined by the testator’s parents and the NYPD, made an oral application to seal the documents. The court declined to entertain the oral application and instead provided the petitioners, and the parents, as well as the NYPD, with an opportunity to submit their written application by August 14, 2008. In the interim, the court has maintained the relevant documents in chambers. The petitioners submitted their written application, while the testator’s parents and the NYPD did not.

Published on: August 11, 2016

Defendant Moves for Judgment on the Pleadings

by Stephen Bilkis

A Probate Lawyer said that, 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.

Published on: August 9, 2016

Objectant Moves for a Trial by Jury

by Stephen Bilkis

In this contested probate proceeding, objectant pro se, moves for an order granting her a trial by jury. The proceeding was commenced by petitioner on December 15, 2005. The objectant filed objections to probate on August 3, 2006.The decedent died testate on October 24, 2005. Petitioner is decedent’s sister; she is a distributee, as well as the nominated executor and residuary beneficiary under the propounded instrument dated May 11, 1974. The objectant is a distributee; she is a daughter of one of the decedent’s pre-deceased brothers. She does not receive anything under the propounded instrument.

The objectant asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was “told that the conference would be first.” She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she “signed for this.” Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.

In her moving papers, the objectant again asserts that one of the court attorney-referees is “in harmony” with petitioner’s attorney. This assertion was the subject of a prior decision (dec no. 666, October 30, 2007) of the court, which denied the objectant’s motion for disqualification of the court attorney-referee because the objectant did not assert any of the statutory disqualifications set forth in section 14 of the Judiciary Law to support her motion (see Schreiber-Cross v. State of New York, 31 AD3d 425 [2nd Dept 2006] and Moers v. Gilbert, 175 Misc 733 [Sup Ct, New York County 1941][court referee is held to the same standards as a Judge] and because the record did not reveal any other basis on which the court might be inclined to assign a different court attorney to the case.

Published on: August 8, 2016

Court Determines Fate of Lost Will Codicil

by Stephen Bilkis

This is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated March 2, 1981, the original of which cannot be located; the decedent died April 4, 1981. The petitioner is the decedent’s daughter-in-law, the surviving spouse of the decedent’s post-deceased son. At the time of her death in 1981, the decedent’s only distributees were her son and her estranged spouse. She resided in a house owned by her estranged spouse. The decedent’s only asset was a home on the same block which was then occupied by the son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the son advised her that the decedent had left the residence in which they were residing to him. She also claims that she was not aware that any steps needed to be taken regarding the property until after the son’s death in April 2005, when she attempted to place the house on the market for sale.

A waiver and consent has been filed by the executor of the estate of the decedent, decedent’s estranged spouse who post-deceased the decedent. A renunciation and waiver and consent have also been filed by the son of petitioner and decedent’s son.

Pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will. It appears that the execution of the original instrument was supervised by an attorney permitting the inference that the statutory requirements were met (Matter of Spinello, 291 AD2d 406 [2002]), thus satisfying the requirement of proof of due execution. The court is further satisfied that the original instrument’s provisions have been established by a photocopy which is a true and complete copy of the original instrument as executed (SCPA 1407[3]).

Published on: August 7, 2016

Petitioner Brings Proceeding for the Judicial Settlement of the Final Account

by Stephen Bilkis

In a proceeding for the judicial settlement of the final account of the preliminary executors and the executors of the will of the deceased, for the period from November 1, 1995, through May 28, 1999, the petitioner appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Kings County), dated February 9, 2004, as denied his motion for summary judgment fixing his compensation as preliminary executor in the sum of $2,563,803.81 and granted that branch of the cross motion of Long Island College Hospital, Polytechnic University, Chemical Heritage Foundation, and the Attorney General which was for summary judgment limiting his compensation for all services as an executor of the decedent’s will, whether performed as a preliminary executor or as an executor, to the sum of $400,000. In a proceeding for the judicial settlement of the final account of the preliminary executors and the executors of the will of the deceased, for the period from November 1, 1995, through May 28, 1999, the petitioner appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Kings County), dated February 9, 2004, as denied his motion for summary judgment fixing his compensation as preliminary executor in the sum of $2,563,803.81 and granted that branch of the cross motion of Long Island College Hospital, Polytechnic University, Chemical Heritage Foundation, and the Attorney General which was for summary judgment limiting his compensation for all services as an executor of the decedent’s will, whether performed as a preliminary executor or as an executor, to the sum of $400,000.

The petitioners, were named co-executors in article fourteen of the decedent’s will, which provides: “The commissions payable to my executors shall be according to the New York statute then in effect, but shall in no event exceed the sum of $800,000, which amount shall be divided between my executors, if more than one shall be serving, as they may agree, recognizing the extent of the duties and the relative difficulty of the duties assumed by each or done by each in his respective tenure in office, and the remaining duties and their extent remaining after his tenure, and I direct that each executor agree in writing to that provision as a condition of qualifying.” In the event either or both nominated executors failed to qualify, nonparty Fiduciary Trust Company International of New York was named as an alternate executor. Following the death of the decedent, petitioners offered the will for probate on November 3, 1995. On the same day, they filed a petition for preliminary letters testamentary. Preliminary letters testamentary were issued on November 20, 1995. The will was admitted to probate on July 8, 1996. The preliminary letters were vacated, and letters testamentary were issued to the petitioners. On November 4, 1996, petitioner filed a renunciation of compensation provided under the will pursuant to SCPA 2307 (5). Wagner did not renounce the provision limiting his compensation as executor. On November 25, 1996, the executors, petitioners filed a successful ex parte petition for advance payment of commissions pursuant to SCPA 2311, requesting that each executor receive $200,000 on account of their commission. In his supporting affidavit, petitioner purported to preserve his right to statutory commissions under SCPA 2307 by reason of his renunciation. In July 1999, when the executors filed an account of their administration of the estate and petitioned for the settlement of their account, petitioner requested that he be awarded full statutory commissions of $5,323,112, less the $200,000 advance. Wagner only requested that the court award him $400,000 in compensation as provided in the will, of which $200,000 had been paid. The residuary beneficiaries of the estate, several charitable entities, including Long Island College Hospital, Polytechnic University, and the Chemical Heritage Foundation, as well as the Attorney General, statutory representative of charitable beneficiaries (hereinafter collectively the Charities), objected to the accounting, inter alia, on the ground that petitioner was not entitled to statutory commissions. The Charities contended that the will limited compensation to the sum of $800,000, petitioner was required to either accept the compensation cap or not serve at all, and because petitioner petitioned for preliminary letters testamentary in which he swore that he was entitled to letters testamentary immediately upon the probate of the will, he satisfied the condition precedent to qualifying by implicitly accepting the compensation provided in the will, notwithstanding his renunciation.

Contrary to petitioner’s contention, the Surrogate’s Court properly denied his motion for summary judgment to fix his statutory compensation as preliminary executor in the sum of $2,563,803.81, and granted that branch of the Charities’ cross motion which was for summary judgment, inter alia, limiting him under the will’s provisions to the sum of $400,000 as compensation for all services as an executor, whether performed as a preliminary executor or as an executor of the estate.