New York Probate and Estate Administration Lawyer Blog

Published on: June 25, 2016

Contestant Made Application for Order Vacating Demand for Bill of Particulars

by Stephen Bilkis

The contestant has made application to the Court for an order vacating and setting aside the proponent’s demand for a bill of particulars, or in the alternative, modifying said demand, and for such other, further and different relief as to the Court may seem necessary and proper. The proponent’s demand for a bill of particulars is directed to the allegations of fraud and undue influence in paragraph 3 of the contestant’s objections.

A Kings County Probate Lawyer said that, the application will be treated as though the proponent were seeking a bill by motion in the first instance, since it calls upon the Court to determine the nature and extent of the items, if any, which the contestant should furnish to the proponent.

It is too well settled to require citation of authority, that the proponent in a contested probate may properly require the particularization of the charges of fraud and undue influence asserted to defeat the probate. The real controversy here revolves around the extent to which such particulars ought to be furnished.

Published on: June 18, 2016

Court Decides Proceeding for Leave to Compromise for Wrongful Death

by Stephen Bilkis

This case was initiated by JC as administrator of the goods, chattels and credits which were of CP, deceased – for leave to compromise a certain claim for wrongful death and to render and have judicially settled an account of the proceedings as administrator – brought before the Surrogate’s Court of the City of New York, Nassau County.

This is a proceeding for leave to compromise an action for wrongful death and conscious pain and suffering.

On 7 June 2000, the decedent died as a result of injuries he sustained in a construction accident in Bronx, New York. He was survived by his wife and two children all of whom presently reside in Ecuador. On 13 October 2000, the court issued limited letters to petitioner, JC, decedent’s uncle, to commence the instant action.

Published on: June 17, 2016

Case Filed to Prevent Party from Being Executrix

by Stephen Bilkis

This case is a probate proceeding brought before the Supreme Court, Appellate Division, Second Department, New York.

The petitioner, JZ, appealed, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated 16 October 2007, as, after a hearing, granted those Kings of the motion of the objectant, EHP, which were to disqualify her from serving as executrix for the estate of PV and to reinstate letters of administration previously issued to the objectant.

The order was reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the objectant, EHP, which was to disqualify the petitioner was granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion was otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the objectant was denied, and the matter was remitted to the Surrogate’s Court, Kings County, for further proceedings.

Published on: June 15, 2016

Court Discusses Powers of a Surrogate

by Stephen Bilkis

This case was brought before the Court of Appeals of New York.

The issue here is the power of the surrogate to require an administrator’s bond in double the value of the personal estate in this state of JDP, who at the time of his death was a resident of New Jersey, as a condition to the grant of ancillary administration.

At the time of JDP’s death, his personal estate consisted of personal effects with a value of about $2,500 in New Jersey, and stocks and securities with a value of about $40,000, deposited with a safe-deposit company in the city of Brooklyn.

Published on: June 14, 2016

Petitioner Brings an Appeal Regarding the Value of the Estate

by Stephen Bilkis

This is an appeal from the Supreme Court, Appellate Division, Second Department brought before the Court of Appeals of New York. First, an application was filed by LK, as executrix of the last will and testament of DFK, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. Thereafter, the Surrogate of Kings County issued an order confirming the report of the appraiser. This was subsequently affirmed in an order by the Appellate Division of the Supreme Court for the Second Department. Consequently, the applicant appealed. The instant Court affirmed.

DFK died in the city of Brooklyn, leaving a last will and testament. On 10 September 1895, the will was admitted to probate. Only LK, the appellant, qualified as executrix thereof. Subsequently, she petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.

The will of the decedent, so far as material to the questions involved in this appeal, provides as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situated, unto my three sisters, MK, AK, and LK.’

Published on: June 12, 2016

Appellant Files Case Review Judicial Settlement of Will

by Stephen Bilkis

This is an appeal brought before the Court of Appeals of New York from a decision rendered by the Supreme Court, Appellate Division, Second Department, in the matter of the judicial settlement of the account of MNH and others, as trustees under HH’s will.

The trustees appealed from an order of the Appellate Division affirming a decree of the Surrogate’s Court settling their account. The instant court modified and affirmed.

The issue here is the validity and effect of certain portions of the will of HH, and the correctness of the directions contained in a decree of the surrogate of Kings county as to the disposition of certain moneys of his estate.

Published on: June 11, 2016

Surrogates Court Called to Establish Lost Will

by Stephen Bilkis

This is a proceeding brought before the Surrogate’s Court, Kings County, to prove the last will and testament of AEF – to establish a lost will pursuant to the provisions of Section 143, Surrogate’s Court Act.

On 11 February 1958, the decedent AEF died.

According to the subscribing witnesses of the will, on 4 February 1958, the decedent duly executed a will in accordance with the provisions of Section 21, Decedent Estate Law, and that, at the time of execution, he was fully competent to execute a will and was under no restraint.

Published on: June 10, 2016

Petitioner Files for Custody of Child

by Stephen Bilkis

This is a proceeding for the custody of minors under Article 6 of the Family Court Act brought before the Family Court of Kings County.

The petitioner is the natural mother of a child born in 1976 in Brooklyn.

The respondent is the child’s paternal grandmother who was appointed in December 1977by the Surrogate of Kings County as guardian of the person for the child.

Published on: June 9, 2016

Decedent Purposefully Excludes Sons from Will

by Stephen Bilkis

By decree, Surrogate’s Court, Kings County, entered on or about September 8, 1992, which, upon a directed verdict after a jury trial, admitted to probate an instrument purporting to be the last will and testament of the deceased, unanimously affirmed, without costs.

We note first that the purported will itself, dated July 30, 1990, states that decedent was deliberately making no bequests of any significance to the objectants, his two sons, because he believed that they had excluded him from their lives. Evidence at trial established that decedent had not communicated with one son for some twenty years, had had a strained relationship with the other, and that his daughter, the proponent of the will and beneficiary of decedent’s house, commercial property, and residuary estate, had resided with and cared for decedent in his final years after he had suffered a debilitating stroke in December 1989.

Both medical and nonmedical evidence at trial established that decedent had difficulty speaking after suffering the stroke, but eventually regained some conversational capacity. Although decedent apparently was better able to converse in Yiddish, there is no credible evidence that he could not communicate in English. Several witnesses established that decedent, although handicapped verbally as a result of the stroke, still got around, albeit often by wheelchair, carried on his business affairs, and did not appear to be mentally infirm.

Published on: June 8, 2016

Court Discusses Will Construction Issue

by Stephen Bilkis

The testatrix died January 10, 1914 leaving a will which was admitted to probate April 15, 1914. By paragraph ‘Fourth’ of her will she left her residuary estate in trust, and in substance provided that income be payable to a grandnephew for life, and upon his death that the trust be distributed to such of his children or their issue in such proportions as he might be will appoint, the power of appointment being limited, however, to his children or their issue who survived him, and in default of any such will or any such appointment, that the trust pass to the children of the grandnephew and the issue of any who had died per stirpes.

By paragraph ‘Fifth’ of the will testatrix provided that in case the grandnephew dies ‘intestate after me without lawful issue him surviving’ the trust shall be distributed to ‘my heirs at law and next of kin’. Such grandnephew died without issue on October 20, 1957, but whether or not he died intestate is questioned. The reason for the question is because he left a will under which he gave his entire estate to his mother and named her executrix. His mother, however, had predeceased him so that his will was wholly ineffective as a dispositive testamentary instrument as well as ineffective to name an executor. The will was, nevertheless, admitted to probate in another county, and letters of administration issued to one of his distributees who has since died.

Since the grandnephew had no children, the limited power of appointment could not have been and was not exercised and for the same reason the gift-over to children and issue of the grandnephew under paragraph ‘Fourth’ in default of appointment could not take effect. The result is that testatrix must be considered intestate as to the disposition of the trust after death of the income beneficiary unless some other provision of the will prevent such intestacy. If intestacy does result distribution must be to decedent’s heirs and next of kin determined as of the date of her death in 1914.