New York Probate and Estate Administration Lawyer Blog

Published on: March 29, 2015

Testatrix Intended to Donate Entire Estate to Charity

by Stephen Bilkis

A Probate Lawyer said that, this is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (229 App. Div. 809, 242 N. Y. S. 621), entered May 22, 1930, modifying and affirming as modified a decree of the Kings County Surrogate’s Court admitting to probate the last will and testament of Catherine C. Devine, deceased, so as to provide that costs of the trial be awarded to the contestant, who was named as executor in two other wills, under the provisions of section 278 of the Surrogate’s Court Act.

A Westchester County Probate Lawyer said that, in another case a proceeding was brought to probate and construe will. The fourteenth article of the will gave the residue of the estate of the testatrix to named executrix for any and all charities that she in her uncontrolled discretion might deem it best and fitting. In preceding articles of the will the testatrix made specific bequests to persons and organizations for various religious and charitable purposes. In the fifteenth article she stated that she made no provision in the will for any relative ‘for reasons best known to myself.’ The executrix died on February 26, 1961, and the testatrix died on October 26, 1962.

Suffolk County Probate Lawyers said the Surrogate’s Court, Kings County, construed the fourteenth article and held that will clearly disclosed that sole intention of testatrix was to devote her entire estate to charitable and religious purposes, and that fact that named executrix predeceased testatrix did not affect validity of gifts for benefit of ultimate charitable beneficiaries, and that the discretion reposed in the named executrix was not such an essential part of the testamentary plan that her death would thwart intended charitable purposes of testatrix, and that residuary estate should be equally distributed among beneficiaries designated in other articles of the will.

Published on: March 28, 2015

Court Interprets Will Provisions

by Stephen Bilkis

A Probate Lawyers said that, on May 29, 1963, decedent executed his Will, which through paragraph SIXTH reads as follows: ‘I, of the City of Syracuse, County of Onondaga and State of New York, do make, publish and declare this to be my last Will and Testament, hereby revoking all wills and codicils at any time heretofore made by me. ‘FIRST: I give and bequeath to my wife if she survives me, all household furniture and furnishings and other household goods and all automobiles owned by me at the time of my death. ‘SECOND: I give and bequeath to my son if he survives me, all clothing, jewelry and personal effects owned by me at the time of my death. ‘THIRD: I give and bequeath to my son if he survives me, all stock and any other interest in Incorporated owned by me at the time of my death. ‘FOURTH: If my wife survives me, I direct my executors to set aside a portion of my estate equal in value to (a) one-half of the value of my adjusted gross estate as finally determined for Federal estate tax purposes, less (b) the value of all interests in property which pass or have passed to my wife, but only to the extent that such interests are for the purposes of the Federal estate tax included in determining my gross estate and allowed as a marital deduction.

‘I give, devise and bequeath the said portion of my estate to my trustees, IN TRUST, NEVERTHELESS, to hold, invest and reinvest the same, to collect the income therefrom and to pay to my said wife all of the net income therefrom during her life in quarterly installments and, in addition, to pay to my said wife, at any time and from time to time, such part or parts of the principal of this trust as my corporate trustee shall deem necessary for the comfortable maintenance, support and welfare of my said wife. Upon the death of my said wife, the then principal of this trust, if any, is to be paid out and distributed as my wife may appoint by her last Will and Testament (specifically referring to this power of appointment) outright or otherwise, in favor of her estate or any appointee or appointees. If said power of appointment is for any reason not validly exercised by my wife, in whole or in part, then upon her death such portion or all of the principal of the trust, or such interests or estates therein as shall not have been validly appointed by her shall be transferred, conveyed, paid over and distributed by my trustees to my daughter Shirley Haley Hollis if she is then surviving or, if she is not then surviving, to her then surviving descendants per stirpes, or, if none, to my then surviving descendants, per stirpes.

A New York Estate Lawyer said “Notwithstanding anything to the contrary contained in this Will, I direct (a) that in establishing this trust for my wife, there shall not be allocated to the trust any property or the proceeds of any property which would not qualify for the marital deduction allowable in determining the Federal estate tax on my estate or any property or the proceeds of any property includible in my gross estate for Federal estate tax purposes and also subject by reason of my death to any inheritance tax, transfer tax, estate tax or other death duty in any foreign country or state, province or other political subdivision thereof; (b) that the trustees of this trust shall not retain beyond a reasonable time any property which may at any time be or become unproductive nor shall they invest in unproductive property, and (c) that none of the powers granted to the trustees by this Will shall be exercised in such a manner as to disqualify this trust or any part thereof from the marital deduction allowable in determining the Federal estate tax on my estate.

Published on: March 27, 2015

Are Inter Vivos Dispositions to the Widow Properly Includible in Decedent’s Estate

by Stephen Bilkis

A Probate Lawyer said that, this is a proceeding by the executors pursuant to SCPA 1421 to determine the validity and effect of an election by the decedent’s surviving spouse. The decedent executed a will on February 25, 1965 which has been admitted to probate in this court. The decedent was unmarried at the time of execution. He married respondent, his surviving spouse, on October 10, 1967. Subsequent to this marriage decedent made certain Inter vivos dispositions to the surviving spouse. The respondent is the joint and surviving owner of the jointly owned property having a value of $71,444.68.

The issue presented is whether the Inter vivos dispositions to the widow are properly includible in the estate of the decedent for the purpose of computing the widow’s share and are the dispositions for the benefit of the widow to be offset against her share as computed. EPTL 5–1.1(c)(1) provides: ‘Where, after August thirty-first, nineteen hundred sixty-six, a testator executes a will disposing of his entire estate, and is survived by a spouse, a personal right of election is given to the surviving spouse.’ Clause (A) includes the testamentary dispositions enumerated in paragraph (1) of subdivision (b) in the computation of the elective share.

The cases have held that where a will is involved the surviving spouse has a right of election against testamentary substitutes pursuant to EPTL 5–1.1(c) provided: (1) the will was executed after August 31, 1966; (2) the transactions were effected during the marriage; and (3) the transactions were effected after August 31, 1966. All three conditions must be present. Unless present, the Inter vivos transaction is an ‘exempt’ transaction and not a testamentary substitute. There is no right to elect against exempt transactions. In the instant case two of the conditions have been satisfied but the will was executed prior to August 31, 1966.

Published on: March 26, 2015

Petitioner Brings Suit for Breach of Fiduciary Duty and Legal Malpractice

by Stephen Bilkis

A Probate Lawyer said that, in an action, inter alia, to recover damages for breach of fiduciary duty and legal malpractice, the defendant appeals from an order of the Supreme Court, Kings County, dated June 21, 2005, which denied his motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence.

A Kings Probate Lawyer said that, the plaintiff and her young daughter were beneficiaries of the estate of the plaintiff’s mother. The defendant, an attorney, was retained by the plaintiff’s brother, as the executor of the estate, to probate the will and collect the assets of the estate. In November 2004 the plaintiff commenced this action to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation. In a vague and mostly conclusory amended complaint, the plaintiff asserted three causes of action against the defendant. The first cause of action alleged that in December 2001 the defendant, acting as a fiduciary, was negligent in securing the sum of $297,000, which was intended for the plaintiff and her child, by not giving the money to the plaintiff. The second cause of action alleged that the defendant “negligently represented to the plaintiff that he was her attorney” and that he negligently “drafted a will, deed, and several other documents” to the plaintiff’s detriment. The third cause of action did not recite any theory of recovery but simply sought an award of an attorney’s fee. The amended complaint also requested punitive damages. The defendant moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) and (7) for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence. The Supreme Court erred in denying the motion.

The issue in this case is whether plaintiff is entitled to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation.

Published on: March 25, 2015

Executors Seek to Enforce Notice of Election

by Stephen Bilkis

A Probate Lawyer said that, the executors seek a determination as to the validity and effect of the notice of election served and filed by the surviving spouse to take against testator’s will. The will, dated August 1, 1960, was admitted to probate on January 24, 1961. By paragraph ‘THIRD’, testator bequeathed 35% of his estate to his wife with the direction that she ‘devote and contribute one-third’ thereof to certain charities. The will contains no other provision for testator’s wife. The remainder of the estate is to be divided among named legatees in specified percentages.

There were no children born of testator’s marriage, thus the intestate share of the surviving spouse is 50% of the net estate. The bequest provided for the surviving spouse under testator’s will does not meet the minimum requirements of the statutes (Decedent Estate Law, §§ 83, 18). The statutory provisions in favor of a surviving spouse are remedial and are to be liberally construed.

A New York Estate Lawyer said that, in another probate proceeding, co-executor and legatee under the will of the decedent, appeals from so much of an order of the Surrogate’s Court, Kings County, entered January 24, 1964, as granted $1,012.50 to lawyer for counsel fees, said amount to be a lien upon appellant’s share of the decedent’s estate.

Published on: March 24, 2015

Court Hears Attorney Malpractice Action Regarding Probate Case

by Stephen Bilkis

A Probate Lawyer said that, in a malpractice action brought against an attorney-at-law by a named devisee, who was allegedly deprived of his devise as a result of defendant’s negligence in causing plaintiff to act as an attesting witness to the execution of the will, defendant moves for judgment under Rule 107, subd. 5, Rules of Practice, upon the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon. Since the argument of the motion the plaintiff has served an amended complaint. By consent of the parties it is the amended complaint, now alleging three causes of action instead of one, which the court presently has under consideration.

A Kings Probate Lawyer said that, the first and second causes of action are grounded in negligence, while the third seeks to allege an action in fraud. The facts are simply stated in the complaint. In January 1953 the plaintiff and his mother engaged the professional services of the defendant to prepare a last will and testament for the plaintiff’s mother. The said will included a devise of specific real property to the plaintiff. The defendant ‘negligently requested the plaintiff to be an attesting witness to the will.’ Presumably at about the same time as the hiring, plaintiff did act as one of two attesting witnesses to the execution of the will. The defendant retained possession of the will thereafter, though for what purpose is not revealed. Plaintiff also alleges as negligence, in his second cause of action, that ‘holding the will and not informing the plaintiff or the plaintiff’s mother’ that the devise to the plaintiff was void by virtue of plaintiff’s having acted as a witness thereto. About seven years later, in December 1959, the mother died. The will was thereafter, in January 1960, filed for probate in the Surrogate’s Court. It was then that plaintiff allegedly discovered that the devise to him had been voided by having acted as an attesting witness. As a third cause of action the complaint alleges, without other supporting evidentiary facts, that the plaintiff was damaged ‘by reason of the deceit of the defendant in connection with the possession of the will from the time of the execution of the will to the time of the filing of the will and the defendant’s actions prior to and subsequent to the death of the plaintiff’s mother.’ Under the foregoing ‘deceit’ allegation, plaintiff demands treble damages pursuant to Section 273 of the Penal Law.

A New York Estate Lawyer said in this motion plaintiff argues that no actionable wrong was committed at the time the will was drawn. He claims that ‘the cause of action accrued only when the plaintiff suffered the actual damage,’ and that ‘injury was not produced until the death of the testatrix and the filing of the will’. Plaintiff contends, that a cause of action ‘accrues only when the forces wrongfully put in motion produce injury.’ Plaintiff’s principal argument appears to be that defendant was under a duty during the seven-year period, when he had possession of the will, ‘to contact the testatrix or the plaintiff and advise either of them that the will was defective,’ ‘that the negligence of the defendant continued during the period,’ and the ‘defendant’s failure to avert danger to the plaintiff’s property constituted further and continuing negligence.’

Published on: March 22, 2015

Court Discusses Rule of Perpetuities

by Stephen Bilkis

Probate Lawyers said the question presented on this record is whether the trusts created by the will of CMR, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits, and income of the trust-estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder, on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority, and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only; but if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law.

A New York Estate Lawyer said there would be no difficulty in sustaining the limitations in the will, if the period of suspension in this case is reckoned from the death of the testatrix, and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate, and a minority, and substantially the same rule applies to limitations of personal property. By another section of the statute it is declared that the delivery of the grant, where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate. If nothing is to be considered in this case except the terms of the will, and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will; but if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her, as the owner of the property devised and bequeathed, of the jus disponendi, incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust-deed of January 6, 1853, and the provisions of the statute of powers. By section 128 of that statute it is declared that ‘the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed, not from the date of the instrument, but from the time of the creation of the power. Section 129 declares that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person could not be capable of taking under the instrument by which the power was granted; and by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.

Nassau County Probate Lawyers said it is claimed in behalf of the respondents that the will of Mrs. CMR was merely an execution of a power of appointment reserved in the trust-deed of January 6, 1853, made between the testatrix (then CMF) of the first part, and GSR and others of the second part, and that, construing the will in connection with the trust-deed and the provisions of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after the trust-deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz., the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust-deed was made in contemplation of the marriage of the settlor, CMF, with GSR. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts, or incumbrances of her husband, and to secure the principal to her, if she survived her husband; or, in case she should die during coverture, to her appointees by will; or, if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate.

Published on: March 21, 2015

Defendant Claims That Plaintiff Should Have Applied for Guardian Ad Litem Proceeding

by Stephen Bilkis

Defendant moves, pursuant to subdivision 8 of Rule 107 of the Rules of Civil Practice, to dismiss plaintiff’s complaint on the ground that the cause of action cannot accrue against the infant defendant because of his infancy.

Probate Lawyers said the action is brought by the infant plaintiff against the infant defendant for a separation on the ground of alleged cruel and inhuman treatment. It appears from the papers before the court that both of the parties are under 21 years of age. Before instituting this action, plaintiff applied for and secured the appointment of a guardian ad litem. Thereafter, the summons and complaint were served upon both the infant defendant and his father with whom he resided. Defendant now asserts that plaintiff should have applied for the appointment of a guardian ad litem for the defendant before making service of the summons and complaint herein.

A New York Estate Lawyer said the issue before the court is whether it is the obligation of the plaintiff to apply for and secure the appointment of a guardian ad litem for the defendant prior to the service of process, or whether it is the obligation of the defendant, after having been served with the summons and complaint, to himself apply for such relief.

Published on: March 20, 2015

Trustee Requests Final Accounting of Residuary Trust

by Stephen Bilkis

Probate Lawyers said this is a final accounting by the trustee in respect of the residuary trust which terminated upon the death of testator’s widow and life beneficiary on April 16, 1957. In conjunction therewith the Court is required to construe the will, particularly article ‘Eighth’ subd. ‘(2)’ thereof. The construction involves the applicability of Decedent Estate Law, § 47-a, which reads as follows:

If a person dying after this section takes effect shall devise or bequeath any present or future interest in real or personal property to the ‘issue’ of himself or another, such issue shall, if in equal degree of consanguinity to their common ancestor, take per capita, but if in unequal degree, per stirpes, unless a contrary intent is expressed in the will.

A New York Estate Lawyer said that the testator died on December 10, 1936, leaving a will dated November 14, 1930, and two codicils, all of which were duly admitted to probate in this Court on December 28, 1936. Letters testamentary were issued to the widow and Guaranty Trust Company of New York who were the nominated executors, and letters of trusteeship were issued to the trust company now accounting. Testator was survived by his widow, a stepson, a brother Thomas who has since died, a nephew who is the son of a predeceased brother, and a brother WWG. WWG, who died in 1942, was the primary remainderman in the article of the will to be construed. The latter was survived by an only child now known as MH. She and her first husband were divorced and both subsequently remarried. The husband was given custody of their two daughters who were born in 1940 and 1943 respectively. The construction affects the conflicting interests of their two minor children on the one side and of their mother on the other, as secondary remaindermen. The mother’s interest is said to be subject to the claims of assignees, sub-assignees and judgment creditors.

Published on: March 19, 2015

Court Interprets Will Provisions

by Stephen Bilkis

Probate Lawyers said this is a proceeding to construe Article Sixth of testator’s will which was admitted to probate on March 9, 1961. By said article testator bequeathed his residuary estate in trust, to invest and reinvest ‘and to pay to my beloved wife so much of the income therefrom as she may require for her proper maintenance and support during her lifetime. It is my purpose and intent that my said beloved wife shall at all times have sufficient income paid to her regularly so that she may properly maintain herself in comfort. Testator then directed his trustees to resort to the principal of the trust should the income be less than $6,000 per year or in the event his said wife shall because of her personal health require hospitalization or medical care so that the $6,000 per annum is not sufficient to support her. Said Article Sixth then concludes as follows:

This provision for the benefit of my said wife is made and intended to be in lieu of any statutory or other rights in my estate conferred upon her by the laws of the State of New York. In the event that my said beloved wife shall be dissatisfied with the provision made for her hereunder and seek to contest this will, or refuse to accept the provision made hereunder under her statutory rights, in such event she shall be entitled to her statutory share of my estate and to no more, which statutory share of my estate is to be received by her in lieu of the provision made hereunder.

A New York Estate Lawyer said on May 12, 1966 testator’s wife served a notice upon the executors herein wherein she states among other things that she is dissatisfied with the provisions made for me therein (in Article Sixth) and refuse to accept same, and demand that I be paid in lieu thereof an amount equal to a statutory share, in an amount equal to one-third of the net estate together with such amount and property to which I am entitled under section 200 of the Surrogate’s Court Act.