New York Probate and Estate Administration Lawyer Blog

Published on: August 6, 2016

Court Hears Case Regarding Undue Influence in Execution of Will

by Stephen Bilkis

A Probate Lawyer said that this is a proceeding for the probate of the will of the deceased. The will was propounded by testator’s widow, and contested by and others, children of testator. From a decree of the supreme court, general term, (15 N. Y. Supp. 601,) reversing a decree of the surrogate’s court, Kings County, (10 N. Y. Supp. 744,) refusing probate, and directing issues for a jury, contestants appeal. Appeal dismissed.

The general term, on appeal from the decree of the surrogate, which admitted to probate the will of 1881, and the codicil thereto, and denied probate to the will of 1887, on the ground that it was obtained by fraud and undue influence, reversed the decree ‘on questions of fact,’ and directed issues to be framed and sent to a jury for trial. The appeal to this court is taken on the ground that the general term had no power to review the facts, for the reason that the notice of appeal to the general term did not specify that the appeal was taken on the facts, but was, in general terms only, ‘from the decree and each and every part thereof.’ It is insisted that upon such a notice only questions of law presented by exceptions were brought before the general term, and that it could not reverse on the facts upon a consideration of the weight or preponderance of evidence, or because, in its judgment, the facts should be re-examined by a jury. The appellants rely in support of this contention upon section 2576 of the Code of Civil Procedure. That section, which is found in the article relating to appeals from orders or decrees of surrogates, is as follows: ‘The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case to be made and settled by the surrogate, as prescribed by law for the making and setting of a case upon an appeal in an action.’ The claim is that, if the appellants desire a review upon the facts in the Supreme Court, they must so specify in their notice of appeal. Section 2576 does not require that such specification should be made, nor is it elsewhere prescribed, but this, as is claimed, is an implication from the language of the section. We are not satisfied that this contention is well founded. Section 2574, which prescribes how an appeal may be taken, declares that it must be by written notice, to be served, ‘referring to the decree or order appealed from, and stating that the appellant appeals from the same or from some specified part thereof.’ It is not required that the grounds of the appeal shall be stated in the notice. If, under section 2576, it is necessary to specify that the appeal is upon the facts, in order to give jurisdiction to the appellate court to review them, it would seem equally necessary that, if the appeal was upon the law, it should be so specified, in order to enable the court to review the exceptions. We think section 2576 was intended to declare affirmatively the power of the general term to review both the facts and the law on appeals from surrogate’s decrees, and was not intended to regulate the practice in bringing appeals, except to require that, when the appeal is from a decree rendered upon a trial of an issue of fact, a case must be made and settled, as on an appeal in an action. That was done in this case. The question of undue influence in procuring the will of 1887 was the issue litigated, and upon which the determination of the surrogate proceeded, and a large volume of testimony was presented to the general term, and that court, on reviewing the facts, reversed the decree, and ordered issues. The notice of appeal informed the respondents that the entire decree was challenged, and the case prepared exhibited both the questions of fact and law involved. The rule that in an action tried by a jury a motion for a new trial is necessary to enable the general term to review the facts is based upon reasons wholly inapplicable to the case of a trial before a surrogate. We are of opinion that the point urged is not well taken, and that the general term had jurisdiction to review the facts. The question is new, and it is proper, under the circumstances, to dismiss the appeal, leaving the parties to be governed by the order of the general term. All concur.

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Published on: August 5, 2016

Court Discusses Language Used in Will and Codicil

by Stephen Bilkis

A Probate Lawyer said that, this is a proceeding for the probate of the will of the deceased. From a decree of the Appellate Division, affirming a decree of the Surrogate’s Court admitting the will and a codicil thereto to probate and construing the provisions thereof, and others appeal. Judgment modified.

The Appellate Division has affirmed a decree (121 N. Y. Supp. 100) of the surrogate of Kings County, which admitted to probate the will of the deceased, and which construed certain of its provisions. It consisted of two instruments, a will and a codicil, both of which were wholly written by the testator and were executed a few years before his death. The testator died April 9, 1909, unmarried and leaving no descendants. The will was executed in 1899. By its first and second articles the testator gave to his nieces respectively, legacies of $75,000 and $50,000. He directed that the two legacies should be held in trust, and that ‘the income shall be paid only to said legatees respectively and an amount of ten thousand dollars ($10,000) of the principal may be paid to each of them if they so elect when they attain the age of 30 years, to purchase and furnish a home.

The remainder of their respective legacies shall remain in trust and in case of the death of either of them without issue, before the death of their Aunt, legatee under Art. IV herein, then the share of such decedent shall in such event revert to her the said aunt. And in case either said nieces should die without issue subsequently to the death of their Aunt the said and prior to the death of their grandmother then in such case their respective shares shall in like manner revert to their grandmother.’ Article 3 gave to his brother, a plantation in Louisiana. By article 4 the testator gave to his sister, known in the family as a legacy of $125,000, to be held in trust ‘and the income thereof to be paid to herself only, with this proviso however that she may if she wish draw not exceeding Ten Thousand dollars ($10,000) with which to purchase and furnish a home for herself. In case of her death without issue and prior to that of her mother, all her interest herein shall revert to her mother.’ He also gave to her all his ‘interest in and to the estate’ of his mother. By article 6 the testator appoints his mother his ‘residuary legatee, the amount to be placed in trust as herein provided in Art. VIII, for her sole benefit, and the income come thereof to be paid to her. At her death, the principal and any accumulated income there may be shall be divided pro rata between the legatees named in articles I, II, and IV herein respectively upon the basis of their respective legacies herein and to be subject to the same trust restrictions stated herein appertaining to their several legacies hereunder.’ By article 8 the testator appointed the Union Trust Company of the city of New York as the trustee for the trusts in his will and as the executor thereof. A year later the testator executed the codicil. By that instrument he, first revoked the legacies given in article 4 of the will to his sister and substituted in place thereof the sum of ‘$25,000, SUBJECT TO ALL THE CONDITIONS And terms as expressed in said art. iv, with this exception to wit: that the sum of $2,500, instead of ten thousand dollars, be allowed her out of said amount for purchase of a home for herself if she so elects.’ Next he bequeathed to his sister, the sum of $35,000 and to his brother, the sum of $10,000, and then provided as follow: ‘And I hereby make these two legatees, upon the death of my mother, pro rata residuary legatees under the terms and conditions as set forth in Art. VI herein, as additional residuary legatees. The above legacy to his brother is in addition to the one in his favor under Art. III herein.’

Published on: August 4, 2016

Court Determines Rights of Child Born After Will Executed

by Stephen Bilkis

In this probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute (EPTL 5-3.2) determined. In a prior decision (Dec. No. 80, Feb. 7, 2008), the court ruled that any question regarding a party’s status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings.

Rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the movant’s allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

The decedent died on January 13, 2007, survived by eleven children; three from a first marriage, four from a second marriage and four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executrix, who inherits the entire estate valued at several million dollars.

Published on: August 3, 2016

Court Looks to Intent of Testator to Determine Validity of Codicil

by Stephen Bilkis

The father of decedent, died on April 7, 1901, a resident of the county of New York. His will was duly admitted to probate in the Surrogate’s Court of New York County on April 22, 1901, when letters testamentary were issued. The estate and trusts created under said will are administered in that county. The decedent in this proceeding had a power of appointment of the remainder of a trust created for her benefit under the will of her father. In 1942 decedent’s son, assigned his interests in said trust under the will of the father to several assignees. The propounded instrument which is the subject of this proceeding nominates decedent’s son, and his wife as executors. By her will decedent appointed one-third of the appointive property to her son, and two-thirds to a granddaughter. Citations were issued in this estate to the assignees of said son who do not oppose the probate of the will but object to the granting of letters herein to their assignor and his wife, the nominated executors.

The exercise of the power of appointment relates back to the estate of the decedent. The donor merely utilized this decedent as an instrument for the devolution of the title of his, donor’s property. The objectants have no interest in the estate of this decedent. Their interests are solely in the estate of the decedent as assignees of decedent’s son who was named in decedent’s will to receive one-third of the remainder interest of the trust created for decedent’s benefit under the will of the decedent. Whatever payments may be due the assignees will be directed in the Surrogate’s Court of New York County under the will of the decedent. As executors of this decedent, respondents will not receive any money from the Estate of the decedent in which the movants have any interest. The objections to the qualification of the nominated executors are dismissed and the motion for summary judgment is granted. Settle decree on notice.

In another case is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (241 App. Div. 768, 270 N. Y. S. 981), entered March 30, 1934, which affirmed a decree of the Kings County Surrogate’s Court admitting to probate an instrument, dated October 30, 1930, propounded as the last will and testament of the deceased, and a codicil thereto dated June 9, 1931. Objections were filed to the probate of these instruments on the ground that they were not the last will and codicil of the deceased; that they were not duly executed; that at the time they were executed the deceased lacked testamentary capacity; and that their execution was obtained by undue influence, fraud, and conspiracy. Following a trial before a jury and after the contestants had rested, the surrogate, over the objection and exception of contestants, directed a verdict admitting the instruments in question to probate.

Published on: August 2, 2016

Petitioner and Respondent Ask for Interpretation of Will

by Stephen Bilkis

In this probate proceeding both the petitioner and the respondents ask that the propounded holographic instrument be admitted to probate but differ sharply as to construction of the will. The text of the provisions of the will reads:

‘First, after my lawful debts are paid, I give to my wife all my personal as well as all my real property wherever located together with any mixed property I may have. ‘I hereby appoint my beloved wife executrix without bond of this my last will and Testament. ‘In case of accidental and simultaneous instant death of both myself and my wife and in such case only do I direct my sister in law of 253 East 78 St New York City to be the executrix without Bond of this my last will and Testament and give and bequeath to her all my personal as well as all my real property wherever located together with any mixed property I may have. ‘I hereby appoint my wife to be Executrix of this my last Will and Testament.’

The parties have entered into a stipulation providing: ‘That the wife of the decedent herein, died on the 13th day of February, 1957, a resident of 519 West Chester Street, City of Long Beach, Nassau County, of natural causes. ‘That the decedent herein, died on the 20th day of March, 1957, a resident of 519 West Chester Street, City of Long Beach, Nassau County, of natural causes.’

Published on: July 28, 2016

Court Discusses Doctrine of Incorporation by Reference

by Stephen Bilkis

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).’

Published on: July 27, 2016

Movant Petitions for Examination of Decedent’s Widow

by Stephen Bilkis

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).

A Suffolk County Probate Lawyers said that, 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.

Published on: July 25, 2016

Domicile of the Decedent at Issue in Will Case

by Stephen Bilkis

The decedent died on the 9th day of January, 1961, while a patient at the Wolcott Clinic, Wolcott, New York. Thereafter and on the 21st day of February, 1961, the son of the decedent, presented to this Court a petition praying that an instrument in writing dated February 5, 1955, and executed by the decedent purporting to be her Last Will and Testament, be admitted to probate by this Court, which petition alleged, that the said decedent at the time of her death was a resident of the Village of Red Creek, Wayne County, New York.

A Kings County Estate Administration Lawyer said, that thereafter and on the 11th day of July, 1961, the respondent, a niece of the decedent, a legatee under the instrument above recited, presented to this Court a petition putting in issue the domicile of the decedent at the time of her death and requesting a Hearing by the Court to determine the question above stated.

The Court also has before it the motion of the proponent questioning the standing of the respondent to raise the issue before the Court. The matters before the Court are jurisdictional. The one going to the right of petitioner to bring said petition; and the other as to whether the domicile of the decedent was within the jurisdiction of this County at the time of her death.

Published on: July 24, 2016

Petitioner Brings Case for Full and Final Settlement of Account

by Stephen Bilkis

This is a proceeding brought before the Surrogate’s Court, Kings County for judicial settlement of the first and final account of proceedings of the CM Bank, National Association, as trustee under Article “Second” of the will OF AGK, deceased, for the benefit of BMK.

This proceeding for settlement of a final trust accounting presents a question of construction occasioned by the bankruptcy of a charitable remainderman designated by the donee of a power of appointment.

On 3 March 1931, the donor of the power, AK, died. He left a 1927 will which was probated in the instant court. Under the will, the net estate shall be divided into three portions and placed in trust, each part to furnish income to one of his three children; and, upon the death of each child, the remainder interest in his or her trust shall be distributed “by valid and absolute disposition by will of such child” and in default of such exercise of the power, “as a part of the estate of such child in accordance with the statutes of descent and distribution of the State of New York.”

Published on: June 26, 2016

Petitioner Brings Will Construction Case to Court

by Stephen Bilkis

Two subscribing witnesses testified to the due execution of decedent’s holographic will and to her testamentary capacity at the time of the execution; that the last page of the instrument, the only one they saw, bore no additional writings below their signatures.

The changes in the street numbers of the addresses of the legatees under items 13 and 14 are immaterial, as well as the interlineation of the amount of the legacy of item 13, as the amount thereof was increased by figures immediately above it and that in turn was interlined and the original amount reinstated with the initials of the decedent above it; the amount of item 16 was interlined, and a lesser sum substituted therefor immediately above it, which in turn was likewise interlined and the original amount restored. Equally immaterial is the phrase in item 15 which reads ‘in payment of money ($500) she gave my sister Mae and for which I thank her.’ Those interlineations and additions being fair upon their face and unexplained by any evidence to the contrary must be presumed to have been made before the execution of the will. Crossman v. Crossman, 95 N.Y. 145, 153.

The Court finds that the following legacies were originally written in the following sums: item 6–$1,000; item 17–$100; item 18–$100; item 19-$50; and item 20-$200, which sums were interlined and other sums substituted in their places; the interlineations were made either in pencil or ink and the substituted sums in ink, which ink interlineations and substitutions are in different color ink than the original legacies, wherefore it is found that such interlineations and substitutions of different sums were made subsequent to the execution of the will.