New York Probate and Estate Administration Lawyer Blog

Published on: June 7, 2016

Court Looks at Construction of Charitable Trust

by Stephen Bilkis

This proceeding was originally commenced by the son of Mrs. NED, now deceased, who was testator’s niece and one of his two distributees, for a construction that the charitable trust created under paragraph Tenth of testator’s will is invalid. The special guardian for testator’s half-sister, who was testator’s other distributee, takes a similar position. Both distributees and four other persons were given lifetime specified annual legacies under the will and codicil.

Thereafter the said son, who is a residuary legatee under his mother’s will and one of her coexecutors, in his representative capacity, and his mother’s other coexecutor made themselves parties to this proceeding by adopting, amending and supplementing the original petition. The conservator appointed for testator’s half-sister, by a separate instrument adopted the petition and the amended and supplemental petition herein.

The special guardian urges that a hearing be held to ascertain the facts surrounding the execution of an agreement dated December 12, 1936 by and among his ward, Mrs. NED, the nominated corporate executor, and the Attorney-General of the State of New York. Under said agreement the objections to probate of the testator’s will and codicil, which had been interposed by testator’s half-sister, were withdrawn, conditioned upon the payment of a substantial sum of money to each distributee, in addition to the benefits given to each of them under the will.

Published on: June 6, 2016

Deceased Leaves Majority of Estate to Charity

by Stephen Bilkis

JB died a resident of the City of Poughkeepsie, Dutchess County, New York, on April 5, 1954, leaving a Last Will and Testament (and Codicil) which were thereafter on the 30th day of April, 1954, duly admitted to probate in this Court. At the time of his death testator was survived by his wife Mrs. JB and his brother MR. TB. On October 18, 1965, some 11 1/2 years after probate, a petition was filed by Mrs. JB, the widow, praying for a determination of the validity, construction and effect of said Will, particularly of paragraphs ‘FOURTH’, ‘FIFTH’, and ‘SIXTH’, whereby it is alleged that more than 50% Of decedent’s estate was left to a religious association in violation of Section 17 of the Decedent Estate Law. This section provides as follows:

‘No person having a husband, wife, child, or descendant or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. The validity of a devise or bequest for more than such one-half may be contested only by a surviving husband, wife, child, descendant or parent. When payment of a devise of bequest to such society, association, corporation or purpose is postponed, in computing the one-half part of such society, association, corporation or purpose, no allowance may be made for such postponement for any interest or gains or losses which may accrue after the testator’s death. The value of an annuity or life estate, legal or equitable, shall not be computed upon the actual duration of the life, but shall be computed upon the actuarial value according to the American Experience Table of Mortality at the rate of four per centum per annum. Such value shall be deducted from the fund or property, which is subject to the annuity or life estate, in order to ascertain the value of a future estate or reminder interest passing to such society, association, corporation or purpose.’

The Last Will and Testament of Mr. JB, after making certain specific bequests and naming his wife Mrs. JB (petitioner), his brother Mr. TB and his friend and attorney Mr. DM, as executors, provided as follows:

Published on: May 31, 2016

Court Decides Uncontested Proceeding for Reformation of Will

by Stephen Bilkis

This is an uncontested proceeding for reformation of Article FIFTH of decedent’s last will and testament dated November 21, 1979, as amended by Article II of a codicil thereto dated March 24, 1982 (collectively, the “will”). Decedent died on December 12, 1984. The will was admitted to probate by decree of this court.

Petitioner, the sister of the decedent, is a co-trustee of the trust created under Article FIFTH of the will (the “Trust”) for the benefit of decedent’s son, MR. BB, who suffers from chronic physical disabilities, including malfunctioning kidneys, for which he is receiving dialysis treatment. On July 14, 2006, following the death of MR. JJ, who had been serving as co-trustee with petitioner, successor letters of trusteeship were issued by this court to MRS. LL, who is petitioner’s daughter as well as a remainderman of the trust.

Under Article III of the codicil, a trustee who is also a beneficiary of the trust is prohibited from (1) exercising discretion to pay or not to pay income or principal from the trust; (2) determining whether a beneficiary of the trust is disabled; (3) terminating any trust or life estate thereunder; and (4) exercising discretion to allocate receipts or expenses between principal and income. Petitioner and MS. LL, who are remaindermen of the trust as well as the co-trustees, are thus unable to act in respect to these decisions.

Published on: May 30, 2016

Surrogate Court Decides Validity of Will

by Stephen Bilkis

This petition was brought before the Surrogate’s Court, Kings County to prove the last will and testament of AAC, and for a determination as to the validity, construction or effect of the disposition of property contained in the said last will and testament of the decedent.

The testator was a physician. He made a holographic will which was admitted to probate. By the decree, all questions of construction proffered by the petitioners and the fixation of the fees of the special guardians were reserved for future determination.

As maintained by the two special guardians, the Court found no difficulty in upholding the validity of the testator’s testamentary scheme. Although inartistic in form, the testator’s intentions in the will were clear.

Published on: May 29, 2016

Plaintiff Files Motion for Summary Judgment

by Stephen Bilkis

This is a motion for summary judgment filed by plaintiff as executor under a last will and testament before the Supreme Court, Special Term, Kings County.

The plaintiff filed a motion for summary judgment under Rule 113 of the Rules of Civil Practice. This action is brought pursuant to Section 500 of the Real Property Law to have a mortgage cancelled of record on the ground that it is outlawed by the statute of limitations pursuant to Section 47-a, Civil Practice Act.

In the answer, general denials and two affirmative defenses were stated, namely: (1) that on 17 September 1949, the mortgagors acknowledged the mortgage and the indebtedness in writing, thereby extending the statute of limitations, and (2) that sometime after 17 September 1949 and prior to the expiration of the statute of limitations, upon information and belief, the mortgagors absented themselves from the jurisdiction of the instant court in that they or either of them were then and still are residing in Italy.

Published on: May 28, 2016

Petitioner Claims Undue Influence in Will Contest

by Stephen Bilkis

In a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated April 11, 1986, as, upon a ruling made after close of all the evidence at a jury trial dismissing all her objections as a matter of law, dismissed her third objection alleging that the will was procured by the undue influence of the petitioner, admitted the will to probate and awarded letters testamentary to the petitioner.

The testimony at the trial established that the decedent had executed a will in 1977 which would have distributed her estate equally to her two sisters, who were then living, and the proponent of the will in question, the surviving son of a third sister. In the event either of the decedent’s two sisters predeceased her, their shares would go to the objectant, the daughter of one of those sisters. In December 1977 the decedent fractured a hip bone and the proponent of the will came to her aid and assisted her in getting to the hospital. A few days after the decedent’s accident, the proponent of the will ended his employment as a tenured college professor and devoted his energies to assisting his aunt in her affairs, primarily acting as her financial advisor. Specifically, he executed a power of attorney in favor of him; the decedent’s securities were removed from her safe deposit box by proponent of the will and he transferred them to a box in his name; the bank accounts were transferred by the proponent of the will into an account in the joint names of the decedent and the proponent of the will, and he signed the decedent’s name on the account application at her request; he arranged for the dividend checks from the decedent’s securities to be deposited directly into another joint account which was opened in a similar fashion; and the bank statements from the joint accounts were sent to the proponent of the wills home although the proxy materials were sent to her. In addition, the proponent of the will assisted the decedent in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.

In 1981, the proponent of the will drafted and typed a new will for the decedent which named the proponent of the will as the sole beneficiary and executor of her estate. Although by that time the two sisters had died, no provision was made in the new will for the objectant.

Published on: May 27, 2016

Respondent Appeals Attorney’s Fee Provision

by Stephen Bilkis

In a probate proceeding, Respondent appeals from so much of an order of the Surrogate’s Court, dated April 13, 2005, as, upon its application to fix an attorney’s fee, fixed its fee at the principal sum of $109,620, inclusive of reimbursement of a handwriting expert’s fee of $60,884, and directed the petitioner to refund to Plaintiff the sum of $25,391, and the latter cross-appeals from so much of the same order as partially dismissed her counterclaim, in effect, to reduce the sum owed as reimbursement to the petitioner for the handwriting expert’s fee.The order is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof awarding the petitioner attorney and expert fees in the sum of $109,620 and substituting therefor a provision awarding the petitioner attorney and expert fees in the sum of $58,736, and (2) deleting the provision thereof directing the petitioner to reimburse the respondent the sum of $25,391, and substituting therefor a provision directing the petitioner to reimburse the respondent the sum of $76,275; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

It is settled that the determination of a reasonable attorney’s fee in a matter concerning an estate lies within the sound discretion of the Surrogate’s Court. Where, as here, a dispute arises over the terms of a retainer agreement, the responsibility of interpreting the agreement rests with the Surrogate’s Court. In cases of doubt and ambiguity, an agreement between a client and the attorney must be construed most favorably to the client. Here, the Surrogate’s Court properly construed the subject retainer agreement between the petitioner and the respondent.

However, Respondent is correct that the amount of $60,884 which was included in the principal sum awarded to her as reimbursement for the handwriting expert’s fee was excessive and unreasonable. In our opinion, the appropriate and reasonable amount for the services of the handwriting expert under the facts and circumstances of this case should have been $10,000. Thus, the total award to her should have been $58,736. Since it has already paid $135,011 to respondent, she is entitled to be reimbursed the sum of $76,275.

Published on: May 26, 2016

Motion for Summary Judgment Filed for Removal of Fiduciaries

by Stephen Bilkis

Before the court is a motion for summary judgment filed in connection with petitions for the removal of fiduciaries MRK and TOM in the related estates of Mr. KJJ and Mrs. JJ.

BACKGROUND Decedents Mr. KJJ and Mrs. JJ were a husband and wife who tragically died together in an automobile accident on April 22, 2005. They were survived by their three adult sons, CC, VV and SS, movants herein. Both decedents executed wills on November 19, 1986, and both wills provide that in the event that Mr. KJJ or Mrs. JJ is not survived by a spouse, then Mrs. JJ’s brother, MRK, shall serve as Executor.

The wills were filed for probate on October 13, 2005 and admitted to probate on March 1, 2006. Letters testamentary in each estate issued to MRK on March 3, 2006. At the same time, MRK received letters of trusteeship in Mr. KJJ’s estate.

Published on: May 25, 2016

Court Decides Reformation of Trust Issues

by Stephen Bilkis

RL died a resident of Wyoming County on January 18, 2006. His Last Will and Testament dated October 3, 2005 was admitted to probate in this court on April 3, 2006. Under the terms of his will the testator divided his estate in equal shares for his three children, but established a testamentary trust for the share for the benefit of his son, JB. The trust provides for the distribution of income as well as principal for the benefit of JB and is not a Supplemental Needs Trust (SNT) as authorized and defined in EPTL 7-1.12.

Although there has been no formal appointment of a guardian for JB pursuant to SCPA Article 17-a or Mental Hygiene Law Article 81, he is alleged to be a person under disability and receives Supplemental Security Income (SSI) and Medicare benefits as a result of his disability. There is no indication that JB is receiving or has received Medicaid or other, local benefits through the Wyoming County Department of Social Services (DSS) or other agency.

The facts are not in dispute and the matter is before the court on cross-motions for Summary Judgment pursuant to CPLR 3212. The two issues presented are:

Published on: May 22, 2016

Plaintiff Brings Action to Recover Money from Defendant’s Default Under Commercial Credit Line

by Stephen Bilkis

In this action by plaintiff to recover monies based upon the default of defendants under a commercial line of credit and a concurrently executed personal guaranty, plaintiff moves, pursuant to CPLR 3212, for summary judgment in its favor as against defendants in the amount of $249,770, with accrued interest in the sum of $5,049.94, interest on $249,770 at its prime rate plus .50%, plus late fees in the sum of $1,935.25, and reasonable attorneys’ fees and expenses.

By a Business Credit Application dated October 17, 2005, defendant applied to plaintiff for a Business Revolving Credit Line in the sum of $250,000.1 The Business Credit Application set forth the business information of defendant and the personal financial information of defendants as the other president and vice-president, respectively.

Under the section, entitled “Authorizing Resolution,” as the president, stated that at a corporate meeting. it was resolved that Wood could complete the Business Credit Application and that Wood would then “be obliged to fulfill all of the terms and conditions of the respective note and Credit Account Agreement which it shall thereafter receive.” This section of the Business Credit Application was executed by both defendants on October 17, 2005.