New York Probate and Estate Administration Lawyer Blog

Published on: February 1, 2016

Court Hears Petition for Summary Judgment

by Stephen Bilkis

In this probate proceeding, the proponent, one of the decedent’s daughters and the sole residuary legatee under the propounded instrument dated March 8, 1983, seeks leave to move for summary judgment more than 120 days after she filed a note of issue. In the event that the first branch of the application is granted, the proponent moves for summary judgment dismissing the objections to probate interposed by one of her sisters and admitting the will to probate. The objectant’s papers in opposition only address the proponent’s motion for summary judgment.

The issue in this case is whether the motion for summary judgment dismissing the objections to probate should be granted.

The court said that CPLR 3212 (a) application for leave to move for summary judgment may only be granted “on good cause shown.” Although the proponent’s motion was not filed with the court until more than eight months after the note of issue was filed, the objectant is primarily responsible for the proponent’s delay in moving for summary judgment because the objectant requested additional disclosure after the note of issue was filed and then failed to conduct the requested deposition in a timely fashion. Specifically, after the note of issue was filed, the objectant moved to strike it and sought further disclosure. That application was granted to the extent that the objectant was granted leave to conduct a deposition that she requested no later than approximately five months after the date the note of issue was filed. The parties thereafter extended the time to conduct the deposition for a period of approximately two more months. After the objectant’s counsel cancelled an agreed-upon deposition date, the proponent’s counsel notified him that he would not agree to any further extensions without a court order. The objectant never moved for another extension to conduct the deposition and the instant application was filed approximately one week after a pretrial conference with the court.

Published on: January 30, 2016

Petitioner Brings Motion Compelling Appearance of Proponent

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 (Surrogate’s Court Act, § 48; Matter of Joslin’s Estate, 74 Misc. 332, 134 N.Y.S. 229).

The issue in this case is whether petitioner’s motion for an order directing the proponent, to appear for an examination before trial to enable petitioner to frame objections to the propounded instrument bearing date March 10, 1961 should be granted.

Published on: January 28, 2016

Court Decides Status of Unwitnessed Holographic Will

by Stephen Bilkis

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 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).’

The petition presents an issue under the doctrine of ‘incorporation by reference’ as applied to wills. (see Law Revision Commission Report (1935) p. 431 et seq.; 1963 Report Bennett Comm.; Rept. No. 6.1B pp. 286–350.)

Published on: January 24, 2016

Petitioner Asks for Interpretation of Residuary Clause

by Stephen Bilkis

The residuary clause of the will of the decedent dated December 2, 1999, which 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.

The 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 decedent’s nephew died on November 25, 2000, without issue and the decedent died on November 30, 2000. The persons who would take the decedent’s estate in intestacy are a niece, and a great nephew. The decedent’s niece has filed a consent to the relief requested in the petition for construction. The decedent’s nephew defaulted in appearing on the return day of the proceeding. The attorney-draftsperson of the will, has filed an affidavit stating that when the 1997 will was redrafted in 1999, using computer software “some lines from the residuary clause were accidentally deleted.”

Published on: January 22, 2016

Court Hears Proceeding to Declare Living Trust Invalid

by Stephen Bilkis

There are three proceedings pending in the estate of the decedent: (1) a miscellaneous proceeding to declare the decedent 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 the trustee of the decedent 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.

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 one of the daughters has alleged that the decedent’s 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: January 20, 2016

Petitoner Moves for Judgment

by Stephen Bilkis

The 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 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.

The issue in this case is whether defendant’s motion 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 should be granted.

The plaintiffs urge the sufficiency of their complaint on the basis of two California cases. 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. In the Biakanja case, a will was denied probate because the defendant who drew it, a notary public, not an attorney, notarized the will instead of having it subscribed by attesting witnesses. The plaintiff was the sole legatee named in the will and by reason of the denial of probate resulting solely from defendant’s action, he received one-eighth of the estate instead of all of it. The defendant was held liable. In the Lucas case, the defendant attorney in attempting to create a testamentary trust violated the rule against perpetuities and the trust was held invalid. The beneficiaries thereof brought suit. The court sustained the complaint on the theory that the beneficiaries, although not in privity with the defendant attorney, were the primary objects of testator’s bounty and thus the express beneficiaries of the agreement between the testator and defendant attorney for the execution of the will.

Published on: January 18, 2016

Petitioner Claims She is Entitled to Decedent’s Net Estate and Letters Testamentary

by Stephen Bilkis

In this 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.

The instrument is a joint and mutual will of decedent, and her husband. He died first, on April 30, 1958, leaving only jointly owned property, and his will was therefore not probated. She died on December 13, 1958 leaving personal property. By said will each devised and bequeathed to the survivor the entire net estate, but made no alternative disposition in the event he or she predeceased, except as set forth in paragraph ‘Fourth’ of the will. It is therein provided that in the event the deaths of both of them would occur ‘simultaneously or approximately so, or as a result of a common accident or calamity, or under circumstances causing doubt as to which of us survived the other,’ then the entire net estate was devised and bequeathed to the sister of the decedent herein, and in identical eventualities nominated and appointed her executrix ‘of this our joint and mutual will and testament.’

In another case, this is an application for limited letters of temporary 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 petitioner described as decedent’s granddaughter. The will does not name an executor. The granddaughter petitions for probate of the will and for letters of administration c. t. a. She makes this motion for limited letters of temporary 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 Agnes Schmidt, 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 petitioner 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.

Published on: January 16, 2016

Petitioner Brings Hearing to Compel the Production of Wills

by Stephen Bilkis

In these two proceedings to compel the production of the wills of the decedent, the children of the decedent, who are also the stepchildren 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 testators. 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 testator’s 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.

The issue in this case is whether the NYPD can be compelled to produce the documents in their possession purporting to be the wills of the testators.

Published on: January 14, 2016

Objectant Pro Se Moves for Order Granting 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. Respondent 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. Respondent 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 respondent 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.”1 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.

The issue in this case is whether respondent’s motion for an order granting her a trial by jury should be granted.

Published on: January 10, 2016

Petitioner Brings Photocopy of Last Will and Testament to Hearing

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 her son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the decedent’s 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 decedent’s death in April 2005, when she attempted to place the house on the market for sale.

A Kings Estate Administration Lawyer said that, a waiver and consent has been filed by the executor of the estate of the estranged spouse, 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.

The issue in this case is whether this is an uncontested proceeding to probate a copy of the last will and testament of the decedent should prosper.