New York Probate and Estate Administration Lawyer Blog

Published on: May 18, 2015

Respondents Seek to Compel Co-Executors to Provide Various Documents

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, respondents M and J move to compel the co-executors of the estate, S, the surviving spouse of decedent, and K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. L and; (3) un-redacted photocopies of notes taken by Mr. L during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.

In opposition to respondents’ motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. L represented both decedent and decedent’s surviving spouse, S, in connection with their estate plan, and had confidential communications with decedent and S, jointly and individually, concerning S’s estate plan and assets, and that the contents of those communications concerning S’s estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties. The executors move for a protective order concerning the alleged privileged redactions.

A New York Estate Lawyer said although respondents further argue that the executors’ response to their discovery demands is untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute. The time limitations of CPLR 3122 do not apply where the material sought is claimed to be privileged or where discovery would be palpably improper. The documents sought in this matter are alleged to be privileged, and thus respondents’ reference to CPLR 3122(a) is misplaced and the executors’ motion for a protective order is timely and proper.

Published on: May 17, 2015

Court Decides Power of Appointment in Decedent’s Will

by Stephen Bilkis

A New York Probate Lawyer said that records reflect that the instant proceeding was brought by the petition of a Trust Company as the surviving trustee of the trust created by the will of the decedent for his son for (1) an instruction to the trustees as to the validity of the purported exercise by the will of the son of a testamentary power of appointment pursuant to the testator’s will, (2) a judicial settlement of the accounts of the trustees, and (3) a determination of the commissions payable to the company as surviving trustee.

It appears that the infants who are represented by the guardian ad litem are interested in the instant proceeding by reason of the following circumstances: (a) The testator, who died on December 31, 1939, a resident of New York, and whose will was admitted to probate in this Court on January 15, 1940. (b) The infant wards herein are the three grandchildren of the testator’s son, who died on March 20, 1968, and whose will was admitted to probate on March 26, 1968. The son left him surviving his wife, a natural son, (from whom there has been no issue), and an adopted son, who is the father of the three infants constituting the infants herein. (c) The testator’s son was a beneficiary, as well as a trustee, under a trust created by the will of his father. Pursuant to that trust, the son was entitled to the net income from that portion of the trust corpus which had been set aside for his benefit and, in addition, was entitled to appoint such corpus, ‘in such estates, interests and proportions’ as he ‘shall in and by his last will and testament in that behalf direct, limit and appoint,’ to a class of persons consisting of the testator’s issue and the spouses of such issue. In default of such an exercise of the power of appointment, testator’s will provided that the property subject to the power would be given absolutely to the issue of the child possessing the power or, if the child were not survived by such issue, then absolutely to the testator’s issue then surviving. (d) By his will, which was admitted to probate, the son, purported to exercise the power of appointment given him pursuant to his father’s will.

A New York Estate Lawyer said the threshold consideration in the instant case is the testator’s intention regarding the power of appointment, as reflected in his will, and specifically whether an appointment in further trust is authorized.

Published on: May 16, 2015

Court Interpretes Will Construction Issue

by Stephen Bilkis

A New York Probate Lawyer said from the records, these are two cases involving estate litigation. In the the first probate proceeding, a construction has been requested. The will directs that the residuary estate be given to the testator’s wife, and in the event of a common disaster, to the testator’s daughter. The wife’s death occurred prior to the testator’s but the will contains no provision to cover this contingency. The disposition of the estate is further complicated by the following paragraph of the will: ‘FIFTH: I have not mentioned my son in this Will because he is completely paralyzed and is unable to take care of himself, and after the death of myself and my wife, my daughter has promised to take care of my son, and I know she will keep her promise.’

A New York Estate Lawyer said that the court ruled that, ‘The first rule of testamentary construction, of course, is that a will be interpreted to reflect the actual intention of the testator and the second that this intention be ascertained from a reading of the document as a whole. If a ‘general scheme’ be found, it is the duty of the courts to carry out the testator’s purpose, notwithstanding that ‘general rules of interpretation’ might point to a different result.’

In the Matter of D’Allesandro, the will similarly did not provide for the contingency that ensued. The court stated: ‘There are many instances in which a testamentary disposition, made in a contingency which is provided for but did not occur, is held to apply by necessary implication to a contingency which did occur although not provided for in the will.’

Published on: May 14, 2015

Proponent of a will claims that objectant does not have legal standing to object – Potenza’s Will, In re, 19 Misc.2d 107 (N.Y. Surr. Ct., 1957)

by Stephen Bilkis

In this case the court must determine whether an objectant to probating a will has standing to do so. Under New York law, only those with an interest in the proceeding have the legal right to file an objection.

The decedent, Potenza, died on August 8, 1956. She was survived by a number of brothers and sisters as well as an alleged surviving husband, Alessandrello. Although the decedent and Alessandrello were married on August 8, 1953, Potenza questioned the validity of the marriage because she believed that the Alessandrello was previously married in Italy and that he never divorced his previous wife. Potenza left a will dated November 9, 1955, in which she left nothing to Alessandrello. She stated the reason for not leaving him anything was because of her belief that his marriage to his first wife was not legally terminated. The will was submitted for probate, and Alessandrello filed an objection. Alessandrello’s objections to the will are based on lack of testamentary capacity, fraud, duress and undue influence. Further, Alessandrello asserts that he has an interest in the estate as the spouse of the deceased.

The proponent of the will filed a motion to dismiss Alessandrello’s objections on the ground that he lacked status to object to the will. According to New York law, in order to object to a will, you must have status or standing to do so. This means that the objectant must have a pecuniary interest in the proceeding. Generally, standing is limited to distributees or beneficiaries. Distributees, also referred to as “heirs at law,” are those who would receive less under the contested will than they would receive if there were no will. Beneficiaries who have standing are beneficiaries under the contested will who would receive less under the contested will than they would under a prior will. If Alessandrello was legally married to Potenza at the time of her death, then he would have status. Otherwise, he would not.

Published on: May 13, 2015

Petitioner Seeking Common Law Indemnification in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that according to sources, in the instant case, the complainant underwent surgery at a Medical Center, and the deceased served as his anesthesiologist. The anesthesiologist died on October 1, 2002 . On October 21, 2002, the anesthesiologist’s father, as executor of his estate, petitioned the Surrogate’s Court, to have the decedent’s will admitted to probate. The petition to admit the will to probate stated that the decedent died while a domiciliary of New York, and that someone was named in the will as successor executor. By decree, the will was admitted to probate, and sometime later, letters testamentary were issued to his father. Thereafter, the father died.

A Staten Island Probate Lawyer said that in 2003 the complainant commenced the main action against, among others, the Medical Center. In 2008, the Medical Center commenced the instant third-party action against the successor executor of anesthesiologist’s estate, seeking common-law indemnification. The successor, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the lawyers entered into a stipulation with the Medical Center, in which, the successor admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist, except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

A New York Estate Admininstration Lawyer said that by notice of motion, the successor-appellant’s newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the appellant’s affidavit stating that she had been designated as Successor Executor of the Estate of the deceased anesthesiologist, but the Estate was closed, and her role was extinguished in 2006. Her attorney also submitted an affirmation acknowledging that She had been personal representative for an Estate which was domiciled and probated in Colorado, but claimed that her appointment terminated in 2007, pursuant to Colorado law which provides that, “if no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates”. No documents were submitted in support of the appellant’s claim that her status as personal representative had terminated. In opposition, the Medical Center noted that “in Colorado to close an estate, assuming there was one in Colorado, you have to file papers. No such papers are annexed to the motion.”

Published on: May 12, 2015

Court interprets Will Document

by Stephen Bilkis

A New York Probate Lawyer said that the records reflect that these two cases involves matters of probate which was resolved by the court accordingly. In the first probate proceeding, Paragraph ‘Fifth’ of testatrix’ will reads: ‘Enclosed in the same envelope with this Will are two sealed envelopes addressed to my four sons jointly. These letters contain information as to my wishes for the disposition of certain items of personal property. It do not bind my Executors by these wishes but ask they give consideration to them.’ One of the letter referred to, dated and simply signed ‘Mamma’, is a moving personal expression of her deep love and affecting for and abiding faith in her four sons. It makes no mention of her property. The other letter, undated and unsigned, suggests distribution of certain items of personal property. Petitioner presents both letters for the Court’s consideration as possibly incorporated in the will by reference.

As stated in the will, testatrix’ letters to her sons, her nominated executors of the estate, were not to bind them. Consideration for her wishes was all she asked. Her unattested memoranda of desire and expectation are intimately personal in their nature and are couched in terms of love and suggestion, but not of command. Neither her short and concise will nor the letters themselves evidence any intention to bring into the former the mass of detail contained in the latter which, if introduced, would change nothing and would not legally affect the administration or distribution of her estate. Accordingly, the first alternative prayer for relief, granting probate to the attested instrument together with the letters referred to in paragraph ‘Fifth’ thereof, is denied; the second alternative prayer for relief, admitting to probate only the attested instrument, is granted. Settle decree on notice.

A New York Estate Lawyer said that in the second contested probate proceeding, the executor appeals from an order of the Surrogate’s Court, dated February 8, 1988, which denied his motion to set aside a stipulation of settlement and which granted the objectant’s cross motion for leave to enter a money judgment in the principal sum of $20,000.

Published on: May 10, 2015

Probate Court Interprets Holographic Instrument

by Stephen Bilkis

A New York Probate Lawyer said that sources show that the complainant offers for probate a holographic instrument, 2-1/4 3-3/4 inches in size, written upon both sides thereof. The decedent’s signature appears directly below the dispositive provisions with no space for any other signatures below it. The first witness’s signature is on the right-hand side of the paper parallel to the edge thereof approximately at a right angle to the decedent’s signature and followed by the word ‘witness’; the other witness’s signature appears immediately thereafter at a right angle to the first witness’s signature on the side of the paper opposite decedent’s signature. This witness’s signature is inverted in relation to decedent’s signature and preceded by the word ‘witness.’

The question submitted before the court is whether the witnesses signed ‘at the end’ of the propounded instrument is in accordance with the requirements of section 21(4) of the Decedent Estate Law.

A New York Estate Lawyer said that the Court ruled that, Section 21 of the Decedent Estate Law was designed to prevent fraud and its beneficial purpose should not be thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for a fraud to have been perpetrated. As stated in the Field case, ‘Form should not be raised above substance, in order to destroy a will, and the substantial thing in this case is a paper which reads straightforward and without interruption from the beginning to the end, and when thus read the signature is found at the end.’

Published on: May 9, 2015

Probate Court Conducts an Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that records show that in the instant case, the decedent died on August 27, 2003 a resident of New York. She was survived by her son and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to the executor for estate administration. The will provides that the residuary estate be divided equally between the two children but that the daughter, if unmarried, be given a two year right to occupy the decedent’s home provided she pay real estate taxes. The daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by him.

The court ruled that, as with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: May 8, 2015

Courts Review Abiguity in Will Clause

by Stephen Bilkis

A New York Probate Lawyer said that according to sources, this will contest action, involving the construction of a latent ambiguity in a will clause, foregrounds the difficulty of determining close cases in the absence of a clearly enunciated burden of proof. An earlier decision denied summary judgment on an objection in this estate accounting challenging “the Executor’s claim that a rare book collection worth more than $5 million at the time of decedent’s death was included in the specific bequest of tangibles,” finding a latent ambiguity requiring consideration of extrinsic evidence and directing a hearing on the issue. Familiarity with the facts set forth in that opinion is assumed, but a few need be repeated in order to place the resulting hearing, and testimony adduced there, in context.

The decedent, died leaving an estate of approximately $17 million. His two-page will, admitted to probate on September 5, 2007, named his wife as his executor. In Article SECOND, it made a specific bequest of tangibles to his wife, and in Article THIRD, it bequeathed the residuary, two-thirds to his wife and one-third to his son. In her capacity as executor, the wife signed and filed an estate tax return that specifically designated a “rare book collection” valued at $5.2 million, which she has deemed included in the specific bequest to her. Whether the Collection was or was not included in the specific bequest is the issue raised by the son, as objectant to the wife’s intermediate accounting.

A New York Estate Lawyer said that witnesses testified at the hearing. The Decedent was a passionate collector of pre–1800 materials relating to festivals, or “fêtes,” and had been engaged in assembling the Collection for many years, beginning before his marriage. The Collection consisted of books; prints, manuscripts, pamphlets, scrolls and broadsides. Most of the Collection was maintained in decedent’s apartment, the books in a glass-fronted bookcase prominently featured in the living room, with other items in storage boxes specially constructed to avoid damage from light and dust. Some twenty-one larger items were kept in a safe deposit box at a nearby bank. The wife, a collector in her own right, assisted him in assembling the Collection, and whenever pieces from the Collection were lent to museums, their provenance was described as that of “Mr. and Mrs.”

Published on: May 7, 2015

Parties Seek a Judgment as a Matter of Law

by Stephen Bilkis

A New York Probate Lawyer said that records reflect that in a contested probate proceeding, the objectants appeal from a decree of the Surrogate’s Court, which, after reserving decision on the proponent’s motion pursuant to CPLR 4404 for judgment as a matter of law, made at the close of the evidence, and after the trial ended in a hung jury, upon the granting of the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate.

After the parties rested at trial, the proponent moved pursuant to CPLR 4404 for judgment as a matter of law. The Surrogate’s Court reserved decision on the motion and submitted the issue to the jury. After the trial ended in a hung jury, the Surrogate’s Court, upon granting the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate. Contrary to the objectants’ contention, the Surrogate’s Court properly entertained the motion after the trial ended in a hung jury.

A New York Estate Lawyer said that moreover, the Surrogate’s Court properly granted the proponent’s motion. Although the objectants alleged that the will was forged and not duly executed, they failed to adduce sufficient evidence, as a matter of law, to support their objections. Where, as here, the attorney-draftsperson supervised the will’s execution, there was a presumption of regularity that the will was properly executed in all respects. In addition, the self-executing affidavit of the attesting witnesses created “a presumption that the will was duly executed” and also constituted “prima facie evidence of the facts therein attested to by the witnesses”. The objectants failed to overcome this presumption, as a matter of law, because they relied upon either the failure of the attesting witnesses to recall the circumstances of the will’s execution or a highly selected reading of their prior deposition testimony which was controverted by the rest of the witnesses’ testimony. Furthermore, the testimony of the objectants’ expert did not, as a matter of law, establish that the will was forged. The objectants’ remaining contentions are without merit.