New York Probate and Estate Administration Lawyer Blog

Published on: October 6, 2015

Widow Appeals Refusal of Court to Admit Will Into Probate

by Stephen Bilkis

In a probate proceeding, the decedent’s widow, appeals from stated portions of a decree of the Surrogate’s Court, Kings County, dated February 13, 1991, which, inter alia, upon refusing to admit a will to probate, impressed a constructive trust upon the entire estate for the benefit of the beneficiaries named in the will, and directed disposition of the decedent’s estate.

The decedent and his wife, the appellant, executed mutual wills that were mirror images of each other. The couple was childless and wanted their assets to be shared equally by their respective relatives. Accordingly, simultaneous with the execution of the wills, they executed a written contract which prohibited either party from revoking or changing the wills in any way, without the written consent of the other, and they further provided that any attempt to do so would be ineffective as against the claims of the legatees of the mirror wills. The wife survived the decedent, whose will is the subject matter of this appeal. His will provide a portion of his estate would be placed in trust with the income therefrom to the appellant for life, and the remainder to their relatives, who were enumerated in the will. The decedent bequeathed the rest of his estate to the appellant outright.

After the decedent’s death, the appellant wife, alleging that she could not find the decedent’s will, applied for and obtained letters of administration. As the sole distributee, she received the entire net estate. The petitioner (hereinafter the proponent), a co-executor and co-trustee under the will, commenced the instant proceeding against her to revoke the letters of administration that were issued to her, and to admit to probate a conformed copy of the decedent’s will or, alternatively, for specific performance of the aforementioned agreement.

Published on: October 6, 2015

Court Decides if Executrix Lacks Power to Prosecute in a Hold Over Proceeding

by Stephen Bilkis

This is a holdover Landlord-Tenant summary proceeding. The tenant has moved to dismiss the petition pursuant to RPAPL 721 and 741 asserting that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

This case was originally returnable on September 13, 2012. Attorneys for both sides appeared. Tenant’s attorney asked that the case be dismissed and, upon the Court’s reluctance to do so without a record, requested a motion schedule. The Court set the schedule to require that the motion be filed by September 20 with answering papers due September 23 and set October 4 as a control date. Despite this schedule, tenant made no request for any extension of time and made no motion until filing papers on September 28.

The issue in this case is whether petitioner’s motion to dismiss the holdover Landlord-Tenant petition pursuant to RPAPL 721 and 741 on the ground that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.he Legislature created summary proceedings in 1820 in order to give landlords a “simple, expeditious and inexpensive means of regaining possession of

Published on: October 5, 2015

Court Discusses Contested Probate Proceeding

by Stephen Bilkis

The two cases hereunder is about probate proceedings.

In the first case involves a contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

The Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute.

Published on: September 20, 2015

Court Review Instrument Compliance with Decedent Law 21

by Stephen Bilkis

The two cases hereunder is about probate proceedings.In the first case involves a contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

In the first case involves a contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

The Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute.

Published on: September 19, 2015

Catholic Church Brings Suit to Clarify Will Terms

by Stephen Bilkis

In this miscellaneous proceeding, the petitioner, Catholic Child Care Society of the Diocese of Brooklyn (hereinafter Catholic Child Care Society) seeks to modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of a testamentary trust (hereinafter Dowdall Testamentary Trust) established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL 8-1.1.

The decedent E.M. Dowdall died on April 13, 1968. Her will was admitted to probate in this court on January 16, 1969. Article Fourth of the will sets forth various charitable beneficiaries which include The Carmelite Sisters of the Aged and Infirmed, The Catholic Foreign Missionary Society of America (Maryknoll Fathers), The Nursing Sisters of the Sick Poor, The Monastery of Our Lady of Mt. Carmel, and The Confraternity of the Precious Blood. Each of these organizations receives a specific bequest of $5,000.

Article Fifth of the will for which relief under EPTL 8-1.1 is sought bequeaths the entire residuary estate to a trust for the benefit of Catholic Child Care Society. Article Fifth further provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The Dowdall Testamentary Trust has a remaining principal of approximately $90,000.

Published on: September 9, 2015

Petitioner Brings Case to Determine the Validity of an Election Asserted Against the Estate

by Stephen Bilkis

In a probate proceeding in which HW, a/k/a JW, petitioned pursuant to SCPA 1421, inter alia, to determine the validity and effect of an election pursuant to EPTL 5-1.1-A asserted by her against the estate of the decedent IB, the co-executors of the decedent’s estate, JB and HB, appeal, as limited by their brief, from (1) so much of an order of the Surrogate’s Court, Kings County dated July 3, 2008, as granted the petitioner’s motion for summary judgment on the petition and directed dismissal of their counterclaims, without prejudice, and (2) so much of a decree of the same court dated August 5, 2008, as, upon the order, in effect, is in favor of the petitioner and against them granting the petition, declaring that the election was valid, and dismissing their counterclaims, without prejudice, and the petitioner cross-appeals from (1) so much of the order as, upon directing the dismissal of the counterclaims asserted by JB and HB, did so without prejudice, and (2) so much of the decree, as, upon the order, and upon dismissing the counterclaims, did so without prejudice.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree.

In 1982 IB (hereinafter the decedent), an extremely successful businessman who founded the Berk Trade and Business School (hereinafter the School), executed a will. In his will, the decedent named his two sons, JB and HB, as the co-executors of his estate.

Published on: September 1, 2015

Court Looks at Will Construction

by Stephen Bilkis

The 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. Matter of Ross’ Will, 177 App.Div. 719, 164 N.Y.S. 884.

Published on: August 31, 2015

Court Discusses Outcome of Contested Probate Proceeding

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 MB 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, PH, the surviving son of a third sister. In the event either of MB’s two sisters predeceased her, their shares would go to the objectant, LM, the daughter of one of those sisters. In December 1977MB fractured a hip bone and PH came to her aid and assisted her in getting to the hospital. A few days after MB’s accident, PH 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, MB executed a power of attorney in favor of PH; MB’s securities were removed from her safe deposit box by PH and he transferred them to a box in his name; MB’s bank accounts were transferred by PH into an account in the joint names of MB and PH, and PH signed MB’s name on the account application at her request; PH arranged for the dividend checks from MB’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 PH’s home although the proxy materials were sent to MB. In addition, PH assisted MB in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.

Published on: August 30, 2015

Contestant Files Applilcation 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.

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.

Published on: August 29, 2015

Petitioner Raises the Issue of Domicile in Probate Case

by Stephen Bilkis

The decedent ALF, died on the 9th day of January, 1961, while a patient at the Wolcott Clinic, Wolcott, New York.

On the 21st day of February, 1961, EGF, 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.

Thereafter and on the 11th day of July, 1961, the respondent, EKM, 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 ALF at the time of her death and requesting a Hearing by the Court to determine the question above stated. A Hearing was held on the 17th day of July, 1961, and both the proponent therein represented by JCS, Attorney, Wolcott, New York, and the respondent therein represented by RFZ, Attorney, Sodus, New York, produced witnesses and gave testimony to this Court relative to the above issue.