New York Probate and Estate Administration Lawyer Blog

Published on: July 11, 2015

Petitioner Seeks to Reform Residuary Clause

by Stephen Bilkis

This is a proceeding to construe and reform Article III, the residuary clause, of the last will and testament of BO, so as to enable the estate to qualify for an unlimited New York estate tax marital deduction. While an application to reform a will to enable the estate to qualify for a deduction for New York estate tax purposes and not federal may be uncommon, it is permissible. Matter of Glick, N.Y.L.J. Feb. 17, 1989, p. 22, col. 6 (Surr.Ct. New York Co.).

The decedent died on July 21, 1988 survived by a spouse and three children. His will, dated December 14, 1979, was duly admitted to probate on December 19, 1988.

Under Article III of the will the residuary estate, which comprises the entire estate with the exception of some personalty previously bequeathed to his wife, is divided into two trusts, Trust A and Trust B. Under Trust A, the decedent bequeathed in trust for his wife the following: A pecuniary amount equal to the maximum marital deduction allowable to my estate for Federal estate tax purposes ($250,000 or 50% of my adjusted gross estate, as the case may be, less any adjustment required for marital deduction gifts made by me during my lifetime), less the aggregate amount of marital deductions, if any, allowed for interests in property passing or which have passed to my wife otherwise than by the terms of this Article, and less also the amount if any, required to increase my taxable estate to the maximum amount as to which, considering all deductions and credits allowable to my estate, there will be no federal estate tax payable by reason of my death.

Published on: July 10, 2015

Probate Court Rules on Property Dispute

by Stephen Bilkis

This is an application by the Public Administrator of the County of Kings for a construction of testatrix’ will and other relief.

The testatrix died on December 27, 1919 leaving a will dated February 11, 1905 which was duly admitted to probate in this Court on June 18, 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, testatrix devised all her property, real and personal, to her friend, Mr. BNFCRY, who was also named sole executrix with the further proviso as follows: ‘after BNFCRY Death the Balance what is left go to my Brothers or their heirs (naming them) To be Equally divided Between my Brothers or heirs of my Brothers’ (italics, capitalization and spelling as in original).

It appears that upon testatrix’s death Mr. BNFCRY took possession of real and personal property of testatrix and by conveyances, transfers, assignments, sales, and alienations, by said BNFCRY, individually and as executrix, the assets of the estate were disposed of among the several persons named in the petition herein. The question posed is whether by testatrix’ will BNFCRY took a fee or a life estate with or without power of alienation or disposition.

Published on: July 9, 2015

Petitioner Appeals a Surrogate Court Decree

by Stephen Bilkis

In a probate proceeding, the Petitioner appeals from so much of a decree of the Surrogate’s Court, Kings County dated July 1, 2004, as denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of an immediate relative and granted those branches of the motion of the objectant, Mr. HP, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Mr. HP.

In this Court now ordered that the decree is reversed insofar as appealed from and the matter is remitted to the Surrogate’s Court for an evidentiary hearing, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the petitioner (appellant herein) from service as executrix, and to issue letters of administration to Mr. HP.

A testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her affairs, and that selection is not to be lightly discarded. While the Surrogate may disqualify a person from receiving letters of administration where the friction between such person and a beneficiary interferes with the proper administration of the estate, mere friction or hostility between such person and a beneficiary is not sufficient grounds for removal.

Published on: July 8, 2015

Plaintiff Brings an Action to Recover Damages

by Stephen Bilkis

In an action to recover damages for personal injuries and for wrongful death, the defendant X. Co. appeals from so much of an order of the Supreme Court, Kings County, dated December 16, 1985, as, inter alia, denied its cross motion to dismiss the complaint as against it. This Court now ORDERED that the order is affirmed insofar as appealed from, with costs.

The decedent Mr. A.B initially commenced this action for personal injuries against the defendant X. Co., claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent’s daughter, Ms. M, to be substituted as the plaintiff in place and stead of her father in her capacity as the executrix of his estate and to amend the original complaint to include a cause of action for her father’s alleged wrongful death. Special Term denied Standard’s cross motion to dismiss the complaint as against it, rejecting Standard’s argument that the Surrogate’s Court, Kings County did not have the power to declare Ms. M the executrix of her father’s estate and probate his will since he was a domiciliary of Florida at the time of his death.

It is explained pursuant to SCPA 204, when the jurisdiction of a court is called into question in a collateral proceeding, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established by an allegation of the jursidictional facts contained in a verified pleading. Contrary to Standard’s assertion, there were no fraudulent statements in the petition. While the petition alleged that the decedent was a domiciliary of Kings County, it also indicated that decedent had died in a Florida nursing home. In addition, annexed to the petition were papers intended to inform the Surrogate of the decedent’s connection with Florida. Thus, the Surrogate was supplied with all of the relevant facts, and in the absence of fraud, the defendant has no standing in a collateral proceeding to have the determination overturned, this was further illustrated in the case of Stolz v. New York (Cent. R.R. Co., 7 N.Y.2d 269, 196 N.Y.S.2d 969, 164 N.E.2d 849).

Published on: July 7, 2015

Legatee Petitions to Compel Payment of a Legacy

by Stephen Bilkis

In a probate proceeding in which legatee Mr. E, petitioned to compel the payment of a legacy, nonparty Mr. LB appeals, by permission, from so much of an order of the Surrogate’s Court, dated December 4, 2008, as disqualified his law firm, SR, P.C., and all members and associates of that firm, from appearing as the petitioner’s attorney.

The facts are stated as follows:

The appellant, LB, was employed for many years as chief court attorney of the law department of the Surrogate’s Court, Kings County (hereinafter the Law Department). In February 2008, shortly after retiring from government service, LB joined SR, P.C. (hereinafter the Firm), a small law firm specializing in estate practice. Prior to LB’s association, the Firm was composed of only two other attorneys, Atty. SR himself and Atty. NA. In late November or early December 2006, before LB left his employment as chief court attorney, the Firm was retained to represent the petitioner in this Surrogate’s Court proceeding.

Published on: July 6, 2015

Court Discusses Restrictive Covenants

by Stephen Bilkis

This action is brought to restrain the violation or the threatened violation by the defendant of a certain restrictive covenant claimed by plaintiffs to affect the lots or parcels of land within an area located in the Borough of Brooklyn now or heretofore known as ‘XYZ Property’. The area in question is bounded on the west by Q Avenue, on the north by AD Road, on the east by RGR Avenue and on the south by FNR Street.

In the year 1893, Mr. JJ died testate seized of said real property. His will was duly admitted to probate by the Surrogate. By said will the testator’s real property was devised to his children and his executors were given a power of sale.

On or about April 28, 1899 said executors caused to be filed in the office of the Clerk of the County of Kings a map entitled ‘Map of Property Belonging to the Estate of Mr. JJ.’ By said map, the land within the area was subdivided into building lots. All of the lots within the tract, except those fronting on Q Avenue, were conveyed by deeds containing a restrictive covenant in form as follows:

Published on: July 5, 2015

Probate Court Called Upon to Interpret Will

by Stephen Bilkis

Mr. LM, a resident of Burlington, Vt., died in August, 1870, leaving a last will dated October 3, 1868, and a codicil thereto executed October 28, 1868, which will and codicil were admitted to probate in the state of Vermont on September 16, 1870, and letters testamentary thereon issued to Mrs. ALM, his widow, who was named as executrix of the will.

The testator left him surviving his widow, ALM, three sons, WM, GM and CM, and one daughter, AM, who were his sole heirs at law and next of kin. GM, one of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; Mrs. ALM, the widow, died September 22, 1904, a little over four years after the death of her son GM, the father of the plaintiff. At the time of the testator’s death his children were under age and unmarried. The testator died seized of certain real estate in the states of New York, New Jersey, and Vermont. The plaintiff brought this action to partition lands in the county of Kings in this state, asserting she had an interest therein for the reason that under the terms of the will the interest of her father, GM, one of the remaindermen, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, GM having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, GM, under the will. The trial justice decided in favor of plaintiff. The judgment entered upon that decision was reversed by the Appellate Division, and the complaint dismissed. Plaintiff and her sisters, defendants, appeal to this court.

The provisions of the will of Mr. LM material to be considered here are as follows:

Published on: July 4, 2015

Petitioner Files for Hearing on Final Trust Accounting

by Stephen Bilkis

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.

The donor of the power, Mr. AK, died March 3, 1931 leaving a 1927 will which was probated in this court. His will provided that the net estate be divided into three portions and placed in trust, each part to furnish income to one of his three children. Upon the death of each child, the remainder interest in his or her trust was to 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.

One of the children thus benefited was Dr. K. His will, which was duly admitted to probate in New York County following his death on March 2, 1940, directed that the trust fund established for him under his father’s will be placed in further trust to pay income to his wife, BK, and that upon her death, the corpus be equally divided between his niece, CV, “to her own sole use, benefit or be hoof, forever” and XYZ Hospital, or its successor or successors, “to its sole use, benefit and be hoof, absolutely and forever.”

Published on: July 2, 2015

Plaintiff Brings an Action for Leave to Compromise an Action

by Stephen Bilkis

In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent was survived by his wife and two children all of whom presently reside in Ecuador. The decedent died as a result of injuries he sustained in a construction accident on June 7, 2000 in Bronx, New York. On October 13, 2000 this court issued limited letters to petitioner, Mr. JC, decedent’s uncle, to commence this action. The action was commenced on August 27, 2001. The Supreme Court, Bronx County, approved the compromise of the action for $790,000.00, allowed attorney disbursements of $5,897.70 and attorneys’ fees of $261,367.43 in an order dated March 20, 2006. This proceeding was commenced on December 5, 2006 to fix the allocation of the recovery, reimburse the funeral creditors and fix the distribution of the balance of the estate among the distributees who suffered a pecuniary loss.

On December 22, 2006, the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent’s widow Mrs. GM. Petitioner also served Mrs. GM with the citation on that date as the mother of decedent’s infant daughters, PG and CG. Another citation was served that date on the infant, PG since she was over 14 years old on that date. Service was complete on the date of the mailing thereof. Citation was returnable January 10, 2007. No one appeared on that date. By order of this court dated February 1, 2007 a guardian ad litem was appointed for PG and CG. The guardian ad litem filed his report dated March 12, 2007.

In the guardian ad litem’s report he points out that PG turned eighteen on February 8, 2007 after he was appointed but before finalization of his report. The guardian ad litem reports that he has examined the file in this matter and concludes that the court lacks jurisdiction over PG presumably because of her eighteenth birthday and the fact that she is no longer under a disability. The guardian ad litem reports that he communicated this fact to petitioner’s attorney and suggested that he send a waiver and consent to Ecuador for PG’s signature and files it with the Court. The guardian ad litem made his recommendations with respect to the compromise subject to jurisdiction. No waiver and consent to the relief requested was ever filed by PG.

Published on: July 1, 2015

Court Reverses Order Disqualifying Executrix

by Stephen Bilkis

In a probate proceeding, the petitioner, Mrs. JP, appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated October 16, 2007, as, after a hearing, granted those branches of the motion of the objectant, Mr. EP III, which were to disqualify her from serving as executrix for the estate of a deceased relative and to reinstate letters of administration previously issued to the objectant.

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

The right of a testator or testatrix to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded, as explained in the case of Matter of Flood ( 236 N.Y. 408, 410, 140 N.E. 936). However, in the case of Matter of Mergenhagen (50 A.D.3d 1486 1488, 856 N.Y.S.2d 389) the Surrogate may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper administration of the estate, and future cooperation is unlikely.