Appellate Division Grants Surviving Spouse Right To File Late Notice Of Election

The Second Department of the Appellate Division has reversed the Brooklyn Surrogate in the Matter of Sylvester(2013 Slip Op 04613) , granting a widow the right to file a late notice of election against her husband's estate.  A surviving spouse must give notice of her intent to exercise his or her statutory right of election against the estate of a deceased spouse within six months of the issuance of letters testamentary to an executor of the estate. In New York, the Estates, Powers and Trusts Law (EPTL) provides that if a surviving spouse is dissatisfied with the legacy left by his or her spouse's will, it is possible to elect to receive an "elective share" of the estate amounting to the first $50,000 of the estate plus the next third rather than accept a presumably lesser legacy, thereby thwarting a testamentary scheme aimed at cutting one's wife (or husband) out of a will. 

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Surrogate Refuses To Nullify Testator's Choice Of Fiduciary

The New York Law Journal has reported a decision of Nassau County Surrogate Edward McCarty III in the matter of the Will of Barboni, 2013-373014(April 25) which upheld the nomination of an executor whose two children both contested the choice, claiming that he had unduly influenced their father.

The court pointed out that the aggrieved children had attacked their father's selection "in very broad strokes without any documentation or supporting evidence". Mere conclusory allegations in the absence of a showing of "good cause" or serious wrongdoing would not be sufficient to disqualify the nominee.

It is important to realize that the law is going to give a testator every opportunity to have the final say in the disposition of his or her worldly possessions, a job  made all the more difficult by the absence of the one person who could have been called upon to explain it all. It is therefore necessary to come up with substantial proof if one is to challenge a decision made from the grave. Simple bare bones allegations will not allow one to do this successfully.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Summary Judgment Granted To Void Trust For Lack Of Capacity

Richmond County Surrogate Robert J. Gigante has ruled that a trust executed by an 88 year old decedent 61 days before her death was void for lack of mental capacity in the Matter of the Estate of Muriel Donaldson reported at 956 NYS2d 840. In this matter, the court granted summary judgment based upon the testimony of the decedent's physician and the drafting attorney.The court takes pains in its decision to differentiate between fraud, lack of capacity and undue influence, dwelling particularly on the difference between testamentary capacity and the level of capacity needed to understand a contract.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Adjournment Of 1404 Examination Extends Time To File Objections

The Supreme Court's Appellate Division has affirmed an order issued by Nassau County Surrogate Edward McCarty in the Matter of Palma A. Pascale 102 AD 3rd 796 which granted objectant's motion to compel production of certain documents prior to the completion of SCPA 1404 examinations. SCPA 1404 provides that objections must be filed within ten days of the completion of examinations. Here, however, objectant sought to leave the examinations open and incomplete subject to the production of the demanded documents. The appellate court ruled that the Surrogate providently exercised his discretion in directing the production of the material and providing that the objections would not have to be filed until materials were produced and the examinations completed.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Don't Let Your Case Become A Lunchroom Munchy!

Reviewing the decision of  Monroe County Surrogate Edmund A. Calvaruso which awarded the petitioner's attorney $5,955, after the executor appealed, the Fourth Department  Appellate Division reduced the original fee to $2,977.50. This decision, in the Matter of the Estate of Katharine Dressauer N.Y.S.2d 760 also sets forth the factors by which a legal fee is determined. These factors include " the time and labor expended, the difficulty of the required skill to handle the problems presented, the attorney's experience, ability and reputation, the amount involved , the customary fee charged for such services, and the results obtained"

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

A Stipulation Made In Open Court Will Probably Rust If Left In The Rain

 

I have never happily allowed a client to enter into a stipulation with provisions which he or she will probably not be able to keep. Also, while I wholeheartedly subscribe to the maxim that  "A bad settlement is better than a good lawsuit", I try to be careful that the "bad" provisions of a stipulation are not so awful that my client cannot ultimately digest them. It is important to keep in mind that a stipulation is a private contract, not lightly set aside by the court. That is even more so the case where the stipulation is made in open court and on the record.

The decision rendered by the 3rd Department of the Supreme Court's Appellate Division in the Estate of McLaughlin, reported here is a good cautionary tale of what happens when the client is not totally on board as to the terms and conditions of a settlement. In this particular case the objecting party resided in California and was represented by counsel with the authority to enter into a binding agreement.

Continue Reading Posted In PRACTICE AND PROCEDURE , PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Holocaust Survivor's Estate Ordered To Return Ancient Gold Artifact To Berlin Museum

Today'sNew York Law Journal has reported that the Appellate Division of the Supreme Court has overturned a ruling by former Nassau County Surrogate John Riordan and has directed that the estate of a Holocaust survivor return an ancient gold tablet to the Berlin Museum.The court's unsigned opinion in Matter of Flamenbaum 2010-04400 overruled the lower court's finding that the museum's claim was barred by the doctrine of laches. The doctrine of laches provides that where one fails to exercise one's rights for an undue period of time, those rights are eventually lost.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Court Upholds Obtjections To Probate In Spite Of Waiver

The Supreme Court's Appellate Division recently upheld New York County Surrogate Nora Anderson's decision in the probate proceeding of Rosalin E. Melnick 942N.Y.S.2D 45 (A.D. 1Dept 2012) which denied a petitioner's motion to dismiss objections to the probate of the will where the objectant had already signed a release. The court held that the language of the release was "not clear and unambiguous waiver and that the legatee did not therefore relinquish his statutory right to file validity objections"

 

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Court Upholds Decision Denying Mother Of Decedent's Petition To Be Named Administratrix Of His Estate

Brooklyn Surrogate Lopez Torres'  decision in In Re Beharrie924 N.Y.S..2d451  was upheld  by the Appellate Division , Second Department. The court found that she did not have a priority to be appointed administratrix of two infant distributees. The Surrogate has broad discretion to determine to whom it should issue letters of administration, based upon the best interests of the estate.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Res Judicata Blocks Fiduciary's Attempt To Revisit Real Estate Question In Surrogate's Court

 The Matter of the Estate of Jane Grisson 2007-1804/C  (reported in the NY Law Journal at p. 17 on May 6), Surrogate Peter J Kelly applied the doctrine of res judicata to block the attempt of a fiduciary from revisiting a real estate dispute which had been litigated in the Supreme Court in 2007. Res judicata provides that once a matter has been adjudicated by any court of competent jurisdiction, it cannot be the subject of a new action. The basic idea here is that you only get one bite at the apple and cannot run to a new court for a new hearing in front of a new judge. Surrogate Kelly makes the point that even if the first court's decision was erroneous, that incorrect result is binding for all time absent a successful appeal which was obviously not taken here.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Conclusory Statements Are Not Sufficient To Raise An Issue Of Fact As To A Will's Validity

An Objectant seeking to block a will's admission to probate learned the hard way that there is nothing easy about doing this. The Appellate Division, Third Department held in In Re Doody 912 N.Y.S.2d 792(A.D. 3 Dept. 2010) that upon the petitioner making out a prima facie case for valid execution, conclusory allegations were not enough to raise a triable issue of undue influence or fraud.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Court Restates Accounting Burdens

A recent decision from the Second Department of the Appellate Division in In Re Taylor 912N.Y.S.2d 651 (A.D.2 Dept 2010) reminds us of the burdens to be met by both sides in a judicial accounting.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Petitioner Loses Her Standing --And Her Case

New York's Appellate Division recently affirmed a decision of Nassau County Surrogate John Riordan which disinherited the daughter of a decedent who had brought a petition to contest her father's will and for a construction of the residuary clause which left $221,000 to various charities. In the Matter of Bernstein  2007 NY Slip Op 04625, in addition to this charitable bequest, the sum of $20,000 was left to each of the decedent's children. The will also contained an in terrorem clause which provided that anyone challenging the will would forfeit any interest they might otherwise have had in the decedent's testamentary estate. By violating the in terrorem clause, petitioner lost any interest she might have had in her father's estate. Therefore, the court went on to find that she did not have any standing to sue.

It should be noted that generally, courts will not hear a petition of a party who does not have an interest in the matter over which they are suing. Once, petitioner unsuccessfully challenged the will, she also lost any standing which she might have otherwise had to bring any legal proceeding in the matter.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

DNA Test Ordered By Surrogate In Case Of First Impression

Bronx County Surrogate Lee Holzman, in a case of first impression, has found that a decedent's posthumous non-marital son was entitled to posthumous DNA testing to determine his standing as a potential distributee of his late father. This decision on a motion in the Estate of Jermaine Michael Williams was rendered on December 3rd and was also reported in today's New York Post appears to be the first time a request for posthumous testing was made on behalf of a posthumous child.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Court Leaves Door Open For Foreign Heir To Exercise Fiduciary Rights

Recently, your faithful lawblogger attended a seminar at the local bar association which was emceed by Nassau County Surrogate John Riordan. The surrogate took this opportunity to discuss  the recently decided case of Schoeps v. Andrew Lloyd Webber Art Foundation which is reported at 884 NYS2d396. This First Department Appellate Division case is of interest on several levels. It deals with the attempt of  a German national to recover a multi-million dollar Picasso painting which he alleged was part of a huge art collection sold for a fraction of its true value when the Nazis were seizing Jewish assets in pre-war Germany.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

A Usefull Guide To The Dreaded Generation Skipping Transfer Tax (GST)

Like so many of my readers, the mere mention of the Generation Skipping Tax causes my eyes to glaze over.  I usually break into a cold sweat before I consult the books --and the experts-- in order to deal with a particular  GST problem. Your faithful law blogger still believes in calling in the experts in GST estate planning situations, but I think you will find this article by Mark Powell Esq. in this month's Journal of Accountancy  to be quite helpful .

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Trustee's Duty Requires Undivided And Undiluted Loyalty

New York's Fourth Department Appellate Division has laid down the marker for a trustee's fiduciary responsibility in Capital Heat, Inc. v. Michael R. Blatner Family Trust reported at  882 N.Y.S.2d 632. This matter involved a life insurance agreement made by the plaintiff with the defendant trust when the trustee was also a shareholder and an employee of the plaintiff. In reversing a motion for summary judgment granted by the lower court against the trust for the value of the policy premium, the court ruled that "a fiduciary's duty requires 'not honesty alone but the punctilio of an honor the most sensitive'" with ' "undivided and undiluted loyalty to those whose interests the fiduciary is to protect' ".

Your lawblogger has reported on this case because it sets forth the obligation of a trustee in a nutshell. Not even the slightest hint of self-dealing is tolerable in the relationship between a fiduciary and those whose interests he or she is to protect. Although this is a "bright line" distinction,  it is sometimes difficult for a fiduciary to recognize a problem when it occurs. Keep in mind that the obligation of a fiduciary is unforgiving and  -- in the absence of either a duly executed release or a court order-- without end. It is therefore important for trustees to carefully review their financial decisions with counsel in order to insure that they are acting appropriately.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Bid To Compel Accounting Fails

Erie County Surrogate Barbara Howe found that she lacked jurisdiction to compel an accounting by a successor guardian who had volunteered to administer a custodial account left for the benefit of the petitioner by his grandfather. In Re Gold is reported at 879 N.Y.S.2d 795. While the case itself is no more than a family food fight over what happened to less than five thousand dollars after a family member volunteered to handle the account when the petitioner's grandmother (the original guardian) passed away, it brings to light an interesting conflict in the law .

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Court Holds Look-back Period To Run From Date Of Asset's Liquidation And Not Its Gifting

New York's Fourth Department Appellate Division has made a ruling which should be of interest to those involved in estate planning and elder law. The Matter of Padulo v. Reed (2009 NY Slip Op 04813) concerned valuable savings bonds which had been purchased by the decedent during the 1970s and were given to family members in 2001. These bonds, however, were retained by the recipients and were not actually liquidated until 2004 and early 2005. Some of the proceeds were used to pay the expenses of the decedent in a nursing home.It was also found that proceeds had been deposited in a joint account with the decedent. In September 2005, the petitioner sought to have the decedent receive Medicaid benefits.  

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Beneficial Disposition To Attesting Witness Held Void

New York County Surrogate Kristen Booth Glenn has disqualified an attesting witness to a will from receiving a "beneficial disposition" under the will in the Matter of the Estate of Cynthia R. Wu 877N.Y.S.2d 886. In this matter, the executor had applied for an order directing the decedent's brother -- who was also the beneficiary of two life insurance policies-- to pay his ratable share of the estate tax even though the will contained a clause specifically relieving him of any obligation to pay any estate taxes resulting from his receiving the proceeds of the policies. The matter was complicated by the fact that the brother - beneficiary was also one of the attesting witnesses to the will.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Division Deals Blow To Son Of Brooke Astor

Earlier today, New York's  Appellate Division, Second Department published a decision In The Matter Of Astor denying Anthony D. Marshall a stay of discovery in the estate proceedings now underway in Surrogate's Court. This is significant because Marshall, and his mother's former attorney Francis   X Morrissey are  defendants in a criminal case where they are accused of looting Ms Astor's estate and forging a codicil to her will. The court took notice of the fact that discovery is often stayed in civil proceedings to safeguard the rights of criminal defendants until their criminal trials are completed but also observed that Mr. Marshall was himself  the petitioner in the estate matter and would not be entitled to this relief. Moreover, the court stated that  "The Fifth Amendment privilege 'protects a person only against being incriminated by his own compelled testimonial communications' (United States v Doe, 465 US 605, 611; see Fisher v United States, 425 US 391, 408). Because it is undisputed that the appellant was not compelled to create the documents at issue here, his Fifth Amendment privilege against self-incrimination 'would not be violated by the fact alone that the [documents] on their face might incriminate [him]' " In short, Messrs Marshall and Morrissey will be compelled to produce documents demanded as part of the civil discovery procedure even though these documents may tend to incriminate them in the criminal case pending against them. 

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Trust Beneficiares Held Not To Be Entitled To Order Directing Costs To Be Paid By Unsuccessful Objectants

New York  generally requires that litigants pay their own counsel fees unlike other states which subscribe to the "loser pays" policy. In keeping with this, the Appellate Division's Third Department has upheld a ruling from the Warren County Surrogate in In Re Hyde 876 NYS2d196. This case involved a dispute between beneficiaries to a trust. A  judicial accounting had been rendered by the trustees with some beneficiaries approving it and others objecting. The trustees successfully defended their accounting and the beneficiaries who had not objected moved to have the legal expenses incurred in the trustees' defense assessed against the shares of those beneficiaries who had unsuccessfully objected. The Surrogate denied the motion.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Son's Attempt To Establish Undue Influence Fails

The issue of undue influence was revisited recently by the Appellate Division in the Matter of Thaddeus Klingman 875 N.Y.S. 2d(A.D. 2 Dept 2009). Mr. Klingman learned the terrible news that he was suffering from terminal lung cancer and then proceeded to rescind a separation agreement, change the beneficiary of his life insurance and pension and execute a new will favoring his wife. His son's objections to the will which were based upon  undue influence and fraud were dismissed upon motion prompting an appeal. The Appellate Division affirmed the Orange County Surrogate 's decision.

Continue Reading Posted In PRACTICE AND PROCEDURE , PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Division Rules Surrogate May Providently Exercise Discretion To Allow Late Filing Of Objections To Will

The Second Department of New York's Appellate Division has upheld a decision of Suffolk County Surrogate John M. Czygier in the Matter of Norma Anne Rizzi 875 N.Y.S.2d 254 which restates the right of the court to exercise its own discretion in permitting the filing of objections to probate after the time to do so had expired. In this matter,  the parties had stipulated as to a date certain by which time objections were to be filed. There was confusion to whether or not this date had actually been extended by further agreement and the attorney for the estate moved the admission of the will to probate when no objections had been filed on a timely basis. When the objectant did file objections, the petitioner moved to strike them and the court denied the motion and issued a decision permitting the filing . In its decision, the appellate court cited Section 1410 of the Surrogate's Court Procedure Act which provides that the court has discretion to extend the time for filing objections and to accept untimely filed objections "so as not to dismiss potentially valid concerns regarding a propounded will on procedural grounds".

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Self-Dealing By Fiduciary Trustees Permitted Where Allowed By Trust Instrument

The time-honored principal of construing a will or trust as written and to determine the settlor's intention from the unambiguous language of the instrument itself was ratified once more by the decision of the New York Appellate Division's Second Department to partially affirm a decision written by Queens County Surrogate Robert Nahman in the Matter of Terranova 873 N.Y.S.2d 651(A.D. 2d Dept 2009). In this action, a trust beneficiary objected to a trust accounting on the grounds that the trustees had retained unproductive property and also that the trustees had purchased an insurance policy on the life of the beneficiary through a company which one of them had owned.The premiums were paid by making loans from the trust to the life insurance trust which owned the policies. Even though this certainly constituted self-dealing, the surrogate denied objectant's motion for summary judgment on her objections.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Back Door Post Probate Will Challenge Fails On Motion

Edward Rogowsky died in March 2001 after leaving the stock in his Brooklyn coop to his life partner of fifteen years, Peter McGarry. The decedent's will also named McGarry as his executor and made the plaintiffs -- his two sons-- the alternate residuary beneficiaries of his will but left them nothing of value. One would think that after decedent's sons had consented to the admission of the will to probate and defendant's appointment as executor, they would not have sued the defendant for failing to honor an oral promise that they alleged he had made to honor a wish of the decedent to bequeath his interest in the apartment to his sons in exchange for their promise not to contest the will. It took them nearly six years to mount this challenge.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Surrogate's Court Procedure Differers In Different Counties

This evening your lawblogger attended a seminar in the courtroom at the Nassau County Surrogate's Court. The speakers were the clerks of the Surrogate's Courts in several Long Island counties as well as New York County. The program underscored the differences between procedure in different counties.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Failure To Show Due Execution Of Will Leads To Denial Of Admission To Probate

Surrogate Thomas E. Walsh II of Rockland County has denied a probate petition where the proponent was unable to establish due execution pursuant to the requirements of the Estates Powers and Trusts Law. It would seem improbable that a will witnessed by three experienced accountants (two of them CPAs) would not pass muster but that was the case in the matter of the Will of Christopher E. DiPasquale, 709/09, decided this past August 28th and reported at page 29 of the New York Law Journal on September 12, 2008.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Self-Executing Affidavit Fails To Establish Due Execution; Appellate Division Orders Trial On The Merits

A  case just handed down from New York's Appellate Division Third Department, Matter of Paigo, 2008 NY Slip Op 06250   involves an interesting and successful challenge to the presumption of due execution which arises when the witnesses to a will sign a self-executing (or "living" affidavit) where they attest that the testator signed the will in their collective presence, knew what he or she was doing, understood and agreed with the contents of the will and appeared to be of sound mind. The problem in this case was that the petitioner had presented this will to the testator for signature in a hospital bed without being able to offer substantial proof that he knew the contents of his estate or the identity of the "natural objects of his bounty". A review of the decedent's medical records indicated that he was "forgetful" and "confused", was impulsive and did not retain information. Also significant was the fact that although an attorney was "minimally involved in the process", he was retained by the petitioner. The court noted that even though he was present at the execution of the will, he had very limited experience in this area of the law. Upon review of the Surrogate's decision, the Appellate Division found that triable issues of fact existed as to the competence of the decedent and the execution of the will requiring that a trial on the merits of the case be held. Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Public Administrator Survives Distributees' Attempt At Removal

New York's Appellate Division has upheld a decision of New York County Surrogate Renee S. Roth which denied a petition aimed at discharging the public administrator. The case is the Estate of Jordan 859 N.Y.S.2d 447. The petition involved an application by first cousins of the decedent to revoke letters of administration previously issued to the public  administrator.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Guardian Ordered To Repay $403,000 To Judge's Estate

Earlier, I reported here about the sad events surrounding the end of the life of former Kings County Civil  Court Judge John L. Phillips. Justice Phillips was a well-known and well-loved jurist whose last years were spent in a general decline. Ultimately it was necessary for a guardian to appointed to oversee his affairs. Several different judges and attorneys were appointed to handle that responsibility until the appointment of Emani Taylor Esq. in 2002.

 

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Loyalty To Mother Held Violation Of Fiduciary's Obligations To Other Beneficiaries

New York's Fourth Department Appellate Division has handed a stunning blow to the Commandment to "Honor thy father and thy mother" when that Biblical directive conflicts with good old fashioned fiduciary obligations. In Re Mergenhagen 856 N.Y.S.389   reversed an earlier decision of the Erie County (Buffalo) Surrogate Barbara Howe which had dismissed a petition to remove a trustee of two irrevocable trusts and to annul the revocation of one of the trusts. In doing so, the court comes to two interesting findings .

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Surrogate's Decision Revives Prior Will

A fairly interesting decision from the Broome County Surrogate deals with a will revoked by subsequent wills. In The Matter of the Will of Julianna B. Sharp 852 N.Y.S.2d 713 the doctrine of dependent relative revocation was held to apply to revive a will that had been properly executed and witnessed even though the decedent had written three subsequent wills, each of which revoked earlier wills.  Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Being An Attorney-Drafter And An Executor And Trustee Does Not Equate To Undue Influence

New York's Second Department Appellate Division has upheld a decision of Queens County Surrogate Robert Nahman that the the fact that an attorney-drafter of a will was also named as an executor and the trustee of a testamentary charitable trust did not raise a presumption of undue influence. In the Matter of Gladys Coopersmith 852 N.Y.S.2d 247, the motion for summary judgment filed by the petitioner (who was the attorney-drafter) was granted dismissing objections claiming that the mere fact that petitioner had played multiple roles equated to undue influence. The court found that in the absence of the attorney-drafter also being a beneficiary under the will, no such inference could be raised. Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Lost Will Raises Issue of Revocation And Matter Is Ordered To Trial

The issue of lost wills has been revisited once more by New York's Appellate Division, Second Department. In the Matter of Peter T. Demetriou 851 N.Y.S.2d 636, the appellate court has affirmed Nassau County Surrogate John  Riordan's decision to deny an objectant's motion for summary judgment to deny probate where the original copy of decedent's will was lost.   Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Division Fails To Find Undue Influence

When a Will is offered for probate that either treats certain family members disparately or completely disinherits one or more siblings in favor of another, the claim of undue influence is quick to be injected into the family feud which invariably results (assuming it has not been percolating for some time prior to the decedent's death). However, as shown by a recent Appellate Division decision in the Estate of Dorothy Greenwald 849 N.Y.S.2d346(A.D.3rd Dept 2008) , it is much easier to claim undue influence than to prove it.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Court Upholds Waiver Of Spousal Right Of Election

Nassau County Surrogate John Riordan's decision in the Matter Of Joseph Seviroli has been affirmed by the Appellate Division of the New York State Supreme Court. The case is reported at 844N.Y.S.2d 115 (A.D. 2 Dept 2007) and holds that a properly drawn, executed and acknowledged  waiver of a surviving spouse's right to an elective share of the estate of the deceased spouse will be seen as valid and enforceable. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Some Pointers About Rebutting The Presumption Of Competence

The issue of competence is quite often at the center of will contests. Until it can be proved otherwise, the mental competence of the decedent is presumed. Rebutting this presumption is entirely the burden of the objectant to a will -- and it is a heavy burden to overcome, but sometimes there may be ways of accomplishing this. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Decision Of Undue Influence By Home Health Aide Sustained On Appeal

Sometime ago, I reported here about the case of Ava Baker, a Brooklyn home health aide who had maneuvered her way into the will of her  88 year old charge, causing him to thoroughly abandon an established testamentary scheme. Now, the Supreme Court's Appellate Division has agreed with and upheld Kings County Surrogate Tomei in the Matter of Martin Neary, deceased 843 N.Y.S.2d 689 (A.D.2 Dept 2007)  affirming the Surrogate's finding that the will should be set aside by reason of undue influence. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Future Pain Award Survives Death Of Beneficiary

Personal Injury cases do not often find their way into a probate and estate blog but the recent decision of the  Second Department of New York Supreme Court's Appellate Division in Stinton V. Robin's Wood rates a special mention. The case is first reported on page one of the New York Law Journal on Sept. 25 and  the decision will be published in full on Sept. 27. This action involved a prior claim by the decedent, Ethel Flanzreich, for damages suffered in a fall in August 2001. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Wife's Bipolar Disorder Held Not To Affect Judgment --Prenuptial Agreement Upheld

Kings County Surrogate Lopez-Torres has ruled against a wife attempting to set aside a prenuptial agreement in the Estate of Joseph Menahem. In a decision reported in the New York Law Journal on September 10th the court declined to nullify the agreement on grounds of undue influence, fraud or the lack of mental capacity to knowingly execute the agreement. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Professional Corporation Held To Be Unqualified To Serve As Executor Of Will

The Surrogate of New York's Onandaga County has issued a ruling in the Matter of Probate Proceeding of the Will of Sylvia P. Huntington  839 N.Y.S. 2d 909 that a professional corporation was not a "natural person" eligible to serve as executor of a will Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Surrogate's Removal Of Preliminary Executor Without A Hearing Is Affirmed

The Third Department Appellate Division of the New York State Supreme Court has made an unusual ruling in the Matter of Palma, NY Slip Op 03805. It has upheld a decision of the Schenectady County Surrogate which granted a motion to remove a preliminary executrix without first holding a hearing. The lower court had found that the preliminary executrix was conflicted to the point where she could not serve as a fiduciary. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Surrogate Extends Statutory Time To File 1404 Objections

Monroe County Surrogate Edmund A. Calvaruso has extended the time of an objectant to a will to file objections even though the Surrogate Court Procedure Act normally provides that this take place within ten days of the examination. In the Matter of Kryk  2007 NY Slip Op 50966(U) which was decided on May 10, the Surrogate balanced the published time limits set forth in the black letter law with the responsibility of the court to make a proper determination as to the validity of the will. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Court Upholds Harry Winston Trustees Over Family Objections

The famed jeweler Harry Winston died on December 8, 1978. Nearly thirty years later New York's Second Department Appellate Division  has ruled in the Matter of Harry Winston NY Slip Op3319 that Mr. Winston's trustees acted appropriately pursuant to an accounting filed in 1982 over the objections of his son Bruce Winston and other members of the family  who claimed that the trustee Deutsche Bank Trust Company  New York breached its fiduciary duty by failing to properly value the stock at the inception of the trust. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Conflict Of Interest Must Involve Actual Misconduct To Warrant Removal Of Fiduciary

The Estate of Rudolph G. Gulbrandsen NY Slip Op 50814(U) presents some interesting aspects of the issue of conflict of interest involving a fiduciary. The decision, by Dutchess County Surrogate James D. Pagones was republished on May 15 at page 23 of the New York Law Journal and deals with the case of Sara Jane Gulbrandsen who was convicted of killing her husband Rudolph and is now serving a prison sentence for that crime.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Fraud Or Overreaching Necessary To Revoke Waiver

New York's Fourth Department Appellate Division has ruled against an attempt at revoking a waiver and consent to probate in theMatter of the Estate of Ashley Robert Titus 2007 Slip Op 3435. In this action, the petitioner was a CPA with a Masters in business administration who signed the document before a Surrogate and then claimed that she did not realize that this would forever foreclose her from challenging her father's will. She had been provided with a copy of the will prior to executing the waiver and consent.

The court determined that her allegations that she did not understand the significance of the waiver and consent were conclusory and unsubstantiated. It further opined that " A party seeking to set aside a probate decree entered upon his consent must show that such consent was obtained by fraud or overreaching..., was the product of misrepresentation or misconduct..., or that newly-discovered evidence, clerical error or other sufficient cause justifies n(the relief sought)"

 This decision is simply one more example of the need to get good legal advice before you sign any significant legal document. The failure to make the right choice in an estate matter may be both embarrassing and quite costly. Spend the time-- and a few dollars-- and sit down with a competent estate practitioner before you make an irreversible decision .

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Testator's True Intent Must Be Determined In Construction Proceeding

A recent decision of New York State’s Third Appellate Division reversed the Albany County Surrogate in the Matter of the Estate of Frederick A. Scale 830N.Y.S.2d 618(A.D. 3 Dept 2007). It was determined that the lower court had wrongfully relied upon the affidavit of a will drafter rather than looking to the testator’s true intent as to which charitable organization he wished to have benefit from his estate. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Otsego Surrogate Finds Lack of Undue Influence

In Re Estate of Ruparshek828N.Y.S.2d623 was decided by New York's Third Department Appellate Division earlier this year. In modifying a decision of the Otsego County Surrogate's Court, it once more stressed the heavy burden of proof needed to establish undue influence. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Executor Surcharged and Discharged For Failing to Properly Manage Estate

The New York State Supreme Court's Third Department Appellate Division has affirmed  the Madison County Surrogate's  decision in the Estate of Wetherill 828 N.Y.S. 2d 722  which surcharged and discharged an executor for improper exercise of his fiduciary duty. This was a matter where two executors were appointed to serve under the decedent's will but only one was disciplined.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Jello Heiress to Receive Just Desserts

New York State Supreme Court's Fourth Department  Appellate Division has reversed a decree of Monroe County Surrogate Edmund A. Calvaruso and, by  so doing has enabled Elizabeth McNabb to share in a testamentary trust originally created by Florence S. Woodward in 1926. The trust, which has a current day value of approximately 9.5 million dollars was established with shares of stock from the Jello fortune. This decision has been reported in the March 23, 2007 New York Law Journal in the Matter of Accounting by Fleet Bank, Docket No 229. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Court Allows Reform of Trust to Reflect Testator's Intent

Nassau County Surrogate John Riordan has ruled in favor of reconstructing a testamentary trust in the Estate of Goldie Hyman, a case reported in the March 7th issue of the New York Law Journal at page 21. Even though this matter was uncontested, it presents a rather interesting fact pattern, especially in light of today's increasingly complicated web of medicaid regulations. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Trustee Breached Fiduciary Duty For Failing To Charge Fair Market Rental For Trust Property

In theEstate of Jerome Silverstein, 827NYS2d 50,a case before the New York State Supreme Court's First Appellate Division, it was held that trustees breached their fiduciary responsibility of loyalty by allowing immediate family members to occupy trust property at no rent or for rent far below fair market value. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Motion For Summary Judgment Fails To Overcome Mother's Objections To Probate

Today's New York Law Journal reports a decision of Surrogate Glen in New York County who refused to grant an executor's  motion for summary judgment to dismiss the objections of the decedent's mother. In the Estate of Jeffrey A. Katz 0468/2002, the decedent had committed suicide two and one half months after executing a will leaving an estate in excess of one million dollars to his accountant. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Unsupported Objections Lead To Judicial Sanctions

The First Department of New York's Appellate Division has upheld a finding by New York County Surrogate Renee R. Roth in  In Re Rudin 824 NYS2d 637 (AD1 Dept 2006). This action involved the filing of an accounting by the testamentary trustees of the decedent. In response to the accounting, objections were filed in which it was claimed that there were missing assets and trustee misconduct. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Undue Influence Held Provable By Circumstantial Evidence

The subject of undue influence is treated once more by the New York Supreme Court's First Appellate Division in In Re Will of Ryan, 824 N.Y.S. 2d 20(A.D. 1st Dept 2006). After being disinherited by their mother, under a will which she made at the age of 89, the decedent's children filed objections to their mother's will claiming that she was unduly influenced by their older brother Tomas.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Original Will Not Required For New York Probate After It Has Been Admitted To Probate In A Foreign Jurisdiction

An interesting twist on the admissibility of a copy of a will to probate in New York is seen  in In re Estate of Carmody, 821 NYS 2d 858. In this action, the decedent was a New York domiciliary whose original will was admitted to probate in another country. When Carmody's executor sought to obtain the will so that it might be admitted to probate in New York as well, the High Court of Ireland refused to return the original copy.

In admitting the will to probate in Ireland, it was ruled there that it had been executed and attested in full accordance with New York law. Surrogate Holzman of Bronx County determined that in view of these findings, an authenticated copy of the will could be admitted to probate in New York.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Civil Suit Fails Against Estate

The Appellate Division's Second Department has upheld the decision of Nassau County Supreme Court Justice Dana Winslow which held that the plaintiff could not  bring an action against a decedent's estate. In Grosso v. Estate of Gershenson 822 NYS 2d 150, the court stated that an estate is not a legal entity and therefore cannot be sued.

In this action, plaintiff's breach of contract lawsuit was summarily dismissed because no executor or administrator had been appointed to serve as the decedent's legal representative. In what seems to be a case of "what in the world were they thinking??" plaintiff' learned that an administrator or executor is the proper party to a lawsuit but has no authority to sue or be sued unless and until they receive letters appointing them from the Surrogate's Court.

 

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Attorney-Drafter of Will Loses Claim To Full Executor's Commission

The  Surrogate's Court Procedure Act (Section 2307(3) (iii) provides that an attorney-drafter of a will which nominates him or her as an executor can receive a full executor's commission only if the the testator executes a disclosure statement worded in "substantial compliance" with a specific model. This model requires the testator to acknowledge that he or she has been told that by signing the disclosure statement, there will be a resulting cost to the estate by enabling the drafter to claim a full commission. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Apportioning Estate Taxes

What better way to end a brief period of inactivity than to recommend you to an article in today'sDeath and Taxes Blog by fellow blogger Joel A schoenmeyer Esq. on the knotty question of how to deal with the apportioning of estate taxes? Many clients --and even their lawyers from time to time-- find it difficult to wrestle with this issue. Joel's article lays out the principles of equitable apportionment in a way that should be easy for you to understand --even if finding the cash to pay the estate tax may not be quite as easy.

Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Codicil Denied Probate Because of Undue Influence

The Second Department of New York's Appellate Division has affirmed a decision of Suffolk County Surrogate John M. Czygier Jr. which refused to admit a codicil to probate because of undue influence.In the Matter of Emilio Pelegrino 817 N.Y.S.2d 121 (A.D. 2 Dept 2006), a second codicil to an 84 year old's will disinherited his grandson in place of his sister-in-law who was also the proponent of the will.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Trustee Absolved Of Charge Of Self-Dealing

The Fourth Department of New York's Appellate Division has held that the payment of a beneficiary's college tuition and secondary school expenses by her father-co-trustee from trust assets did not constitute self-dealing . In the Matter of  Burton Wallens, Deceased 816  N.Y.S. 2d 793  court upheld a lower court's decision which dismissed the beneficiary's objections and ruled that there had been no breach of fiduciary duty.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Death Fails To Relieve Estate of Obligations Contracted For During Decedent's Lifetime

Death may be a good excuse for not showing up for work in the morning but it will not always relieve one of the obligations spelled out in a contract. Such was the case in the matter of Di Scipio v. Sullivan 816 N.Y.S.2d 577 recently decided by the Third Department of New York’s Appellate Division. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Domestic Partner's Claim for 9/11 Benefits Allowed To Go Forward

The terrorist attacks of September 11th have begun to impact our legal system as various cases dealing with claims of survivors of victims have been wending their way through the courts. In a matter of first impression, the Second Department of New York’s Appellate Division has upheld a lower court determination which denied the summary judgment motion of a personal representative in the matter of Cruz v. McAneney 816 N.Y.S. 2d 486.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

In Terrorem Clause Enforced Disenfranchising Beneficiary

In Terrorem ("no contest") clauses are pesky little short --but often sharp-- spikes which must be treated with extreme caution lest they deprive a beneficiary of any rights under the will. Such was the case in In re Bernstein v. Lo Pata decided by Nassau County Surrogate John Riordan and reported in the New York Law Journal on May 30, 2006 at page 45. Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Ruling Expands Inheritance Rights of Nonmarital Children

The Fourth Department of  New York's Appellate Division has expanded the rights of nonmarital children to inherit. In the Matter of Uhl,628 a Surrogate's Court had earlier determined that Lora Elkins and Sally Himelsbach were not entitled to inherit a portion of their cousin's estate after she died intestate in 2003 leaving six cousins. The lower court found that four of the decedent's cousins on the decedent's father's side were able to establish their rights as distributees but that Ms. Elkins and Ms. Himelsbach were ineligible to do so because they had been unable to prove their parents had been married at the time of their births.

Under existing law at the time their father died in 1953, the sisters would have been precluded from inheriting from their father or his "kindred". Their father was the decedent's maternal grandfather, thereby placing them as cousins on the decedent's mother's side .

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Express Terms of Subsequent Will Found to Revoke an Earlier Will

A decision of Nassau County Surrogate John Riordan in Estate of Grace De Lutri 324441 recently published on June 22 in the New York Law Journal determined that a decedent's 1982 will was revoked by the express terms and operation of law of her subsequent 1989 will Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

State Supreme Court Settlement Conditioned On Surrogate's Approval Unravels

A New York State Supreme Court decision in Rivers v. Genesis Holding LLC 812 N.Y.S. 2d 301 is a powerful reminder about the perils of settling a case involving an estate before all the "t" s are crossed and all the "i" s are dotted. This negligence action settled for only $7,500 in New York County (Manhattan) . Plaintiff died after commencing the action to recover for injuries she suffered in a slip and fall. After her administratrix was substituted , attorneys for the parties agreed on a settlement subject to the Surrogate's Courts approval. This settlement was made in open court and was marked "settled" on the court system's computer.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Will's Revocation Fails to Revive Prior Revoked Wills

When Paul P.K. Huang died on August 19, 2004 as a resident of Manhattan, no fewer than eight wills surfaced! On motion of the petitioner, seven of these wills were denied probate even though all of them were dated subsequent to the will offered for probate which was dated October 7, 1998.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Cy Pres Doctrine Determines Disposition of Funds Directed to Dissolved Charity

Nassau County New York Surrogate John Riordan's decision in Matter of Biondo (New York Law Journal, April 6th , 2006 reported at page 20) provides an excellent explanation and application of the doctrine of cy pres (pronounced "sigh-pray"). Originally part of our common law, cy pres is one of those concepts taught in law school which (like the joke about the roof) generally passes right over the head of the average law student and continues right into oblivion until some future point where it has to be relearned.


Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Absence of Murder Verdict Does Not Relieve Husband of Responsibility for Slaying Wife

April 18th's New York Law Journal features a decision by Richmond County (Staten Island) Surrogate John A. Fusco holding that the estate of a deceased husband who had shot his wife to death would be barred from inheriting her portion of the couple's home even though he had not been actually adjudicated as a murderer.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Court Holds Dementia not Conclusive Proof of Lack of Testamentary Capcity

The Third Department of New York's Supreme Court Appellate Division has handed down an interesting opinion on testamentary capacity. In the Matter of the Estate of Albert L. Friedman, reported at 809 N.Y.S. 2d 667(A.D. 3 Dept 2006), it was established that the decedent was diagnosed with progressive dementia.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Appellate Court Holds that Petitioner Seeking to Vacate Admission of Will to Probate Was Entitled to a Hearing

New York's Appellate Division has reversed the Suffolk County Surrogate's decision to dismiss a petition brought to vacate an earlier decree which had admitted a will to probate upon the claim of undue influence. The will which was executed in 2002 left the decedent's entire estate to his third wife . This marked a complete reversal of the testamentary intent of the decedent as it had been set out in a will drawn nine years earlier which had left his estate not only to his then second wife but also to various members of his extended family.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Decision to Cancel an Executor's Real Estate Contract for Failure to Get the Best Obtainable Price is Reversed

New York's Appellate Division has reversed a determination of the Dutchess County Surrogate's Court which had originally granted an application which cancelled a real estate contract of sale on the grounds that the executor did not get the highest price obtainable.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Decedent's Father Not Disqualified From Taking An Intestate Share Of His Child's Estate

In In Re Estate of Ball 807 N.Y.S. 2d 163 (A. D. 3 Dept 2005) New York's Appellate Division, Third Department has reversed a Tompkins County Surrogate holding which dismissed a father's application for an intestate share of his infant son's estate after the child died in daycare. The decedent was a non-marital child whose parents both applied for limited letters of administration to commence a wrongful death action. The father's petition was dismissed upon the mother's claim that he had abandoned and had failed to support the child.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Construing a Will

There is an art to writing so that folks understand exactly what you mean to say and not everyone has that talent. Lawyers included. Just because an attorney has drafted a will does not mean that he or she has done a good enough job to resolve all questions as to what its maker has intended. Consider that the maker is the one person who can give us the best idea as to the aim of the will ----and he or she is dead.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Summary Judgment Dismissing Will Challenge Upheld

In In Re Estate of Edith R. Korn , 2006 Slip Op 117, The First Department of the Appellate Division of the New York State Supreme Court has affirmed a decision of New York County Surrogate Eve Preminger which granted summary judgment an dismissed objections to a probate petition .

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Court Permits Posthumous DNA Testing to Establish Paternity of Non-Marital Child Seeking Distributive Share of Estate

On January 24, 2006 the New York State Supreme Court Appellate Division , Second Department issued a decision in the Matter of James E. Davis , Deceased which speaks to the right of a purported non-marital child to DNA testing in order to establish paternity.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

"Caregiver-Elderly" Relationship Found to Be Highly Confidential and Warranting Close Scrutiny

Earlier this month, I reported ( The Estate of Mary Fischer in December 9th's New York Law Journal) a case where a dishonest home health aide was compelled to return stolen assets to the her former employer's estate. Well, there seems to be a lot more of that sort of thing going around lately as may be seen in The Estate of Martin Neary which was decided by Surrogate Tomei in Kings County (Brooklyn) and reported in the December 19th New York Law Journal (p.40).Martin Neary , an 88 year old attorney had died without a spouse or children . A month earlier, he had executed a will leaving most of his nine hundred thousand dollar estate to his home health attendant, Ava Baker. Objections to the will were filed both by the decedent's cousin and the Public Administrator and ultimately, a trial was held to determine the issues that had been raised.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Court Foils Ingenious Attempt at Post-Mortem Estate Planning

A rather offbeat decision from New York's Appellate Division was recently handed down on December 1st in the Matter of the Estate of Howard Fischer,Deceased 2005 NY Slip Op 09173. Even though the decedent passed away in 1993, his executrix declined to offer his will (which was executed in 1976) for probate. The will left everything to the surviving spouse with the knowledge that she would "provide for our children".

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Turnover is the Recipe for Dishonest Housekeeper

When an estate's fiduciary believes that substantial assets have been wrongfully taken during a decedent's lifetime or from the estate itself, the remedy is generally to commence a turnover proceeding pursuant to section 2103 of the Surrogate's Court Procedure Act. After the property which the fiduciary has alleged had belonged to the decedent is identified , the respondent in the proceeding is obliged to establish that he or she has the right to remain in possession.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Court Permits Self-Gifting Pursuant to Power of Attorney

While the standard rule of thumb is that the use of a power of attorney by its holder to make gifts to him or herself is an improper abuse, New York's Appellate Division's recent decision in the Matter of George J. Ferrara , 802 N.Y.S. 2d 471 (A.D. 2 Dept 2005) has come to a different determination.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Court Appoints Insurer's Attorneys as Defendant's Administrators

New York City's Civil Court is the busiest on the planet so it is easy to believe that some really weird things happen there. Legal -but logical- weirdness was the order of the day in Bianco v. Pierre 1450/00 (reported in the New York Law Journal on November 15,2005) which involved a garden-variety automobile accident case where a plaintiff passenger was seeking damages from the owner of the taxicab in which he had been injured when the accident occurred.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Durable Power of Attorney Obviates Need for Guardianship

A religious dispute involving a battle for control of Brooklyn's Satmar Chassidic Community failed to find a forum in the Kings County Supreme Court when a petition for the appointment of a guardian of the Grand Rabbi's person and property was denied.The petition was brought by six of the Grand Rabbi's eighty six grandchildren.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Hostility, in and of Itself Will not Justify the Removal of Fiduciaries of an Estate

The Matter of the Estate of Ray F. Morningstar, N.Y.S. 2D 674(A.D. 4 Dept 2005) , a recently reported case , concerned a dispute between alleged nonmarital children of the decedent and the decedent's marital children who were the estate's administrators. In its decision denying the petition of the alleged nonmarital children for the removal of the marital children as administrators, New York's Appellate Division speaks at length to the reasons when a fiduciary may be removed.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

A Fiduciary Cannot Account to Him or Herself

In the Matter of Zirinsky 2005 NY Slip Op 25454, Nassau County New York Surrogate John Riordan ruled that the fiduciary of a deceased fiduciary must apply to the Court under SCPA 2207(7) in order to obtain all of the rights and powers of the deceased fiduciary. In the absence of such a determination, the power of the fiduciary is limited to that property of the estate coming within his or her possession at the death of the origninal fiduciary.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Examination of Witnesses to a Will

In order for a will to be successfully contested, the first step is the examination of its witnesses and attorney-draftsman as to the facts and circumstances surrounding the instrument's execution. This proceeding gives the first glimpse into whether or not the law was properly followed in executing the will and whether or not the testator was mentally competent or subject to duress at the time. Section 1404 of the Surrogate's Court Procedure Act (SCPA)provides objectant's counsel with this important tool.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

'Adopted-Out' child Ruled Issue of Birth Parent if Named as Beneficiary in Will

A decision of New York's Court of Appeals handed down on October 27,2005 and published in the October 28 issue of the New York Law Journal in Estate of Mildred B Murphy, Deceased 4 No. 137 resolved issues raised in an unusual situation where a birth mother outlived a son who had been adopted-out but was also named in her will as a beneficiary. The question was whether or not the bequests set out in the will lapsed or passed to his issue pursuant to New York's anti-lapse statute (EPTL 3-3.3)

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Murder-Suicide Disqualifies Killer's Estate

Suffolk County N.Y. police determined that Julie-Ann Low had been slain by her boyfriend Guilio Romano who had then gone on to take his own life. Ms. Low's will provided that Romano was to inherit her home in Westhampton N.Y. together with its contents. The petitioners moved by summary judgment to disqualify Romano's estate on the grounds that he had killed Ms. Low before committing suicide.

Suffolk County Surrogate John Czygier ruled that the petitioners had made a prima facia showing that Romano had murdered Ms. Low and granted summary judgment as a matter of law disqualifying the estate

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Mutual Will Held to be Revocable

In a decision handed down on July 11,2005, New York's Appellate Division made some important distinctions between joint and mutual wills. Schloss v. Koslow, 800 N.Y.S.2d 715(A.D.2 Dept 2005) found that there was insufficient basis to infer that a promise by a testator never to alter or revoke his will gave rise to a binding contract which might be enforced by a third party beneficiary.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Real Estate Contract enforceable against Estate

In the Matter of Remedios BALLESTEROS, a/k/a Remy Balesteros deceased, New York State's Appellate Division directed the administrator of the estate to complete the sale of the decedent's real property pursuant to a contract entered into by the executrix

Continue Reading Posted In PRACTICE AND PROCEDURE
Permalink

Death Invalidates Gift

Checks uncashed and undeposited until after the death of their maker consitute a failed gift requiring the recipient to return the

Continue Reading Posted In PRACTICE AND PROCEDURE
Permalink

Self-executing Affidavits

New York attorneys are encouraged to attach a "living" or self-executing affidavit to the wills they draft and supervise. This is a sworn statement by the witnesses to the will, attesting to the competence of the maker of the will, and that the will was signed in the presence of both witnesses and under the supervision of the attorney.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink

Undue Influence and Duress

Undue influence and duress often form the basis for an estate contest but may be extremely difficult to prove. It is necessary to establish that the influence exercised amounted to a moral coercion which restrained independant action and which forced the testator to do that which was against his or her free will and desire.

Continue Reading Posted In PRACTICE AND PROCEDURE
Comments / Questions (0) | Permalink