New York Probate & Estate Litigation Blog

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.

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.

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.

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 .

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. 

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.

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.  

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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 .

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 .

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 .

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.

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.

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".

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.

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.

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.

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.

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.

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.

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.

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)

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

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.

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

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

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.

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.