The New York Probate Litigation Blog

Category Archives: PRACTICE AND PROCEDURE

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Application To Withdraw Waiver Consenting To Probate Denied By Brooklyn Surrogate

Posted in LEGAL INFORMATION, PRACTICE AND PROCEDURE
Prior to the commencement of a probate proceeding or an administration proceeding, the attorney for the estate will normally send a waiver consenting to the admission of the will to probate or to the appointment of an administrator to all interested parties who are members of the closest class of kinship to the decedent or… Continue Reading

Ex- Wife Compelled To Turnover Life Insurance Proceeds After Her Interest In Decedent’s Insurance Policy Was Extinguished

Posted in LEGAL INFORMATION, PRACTICE AND PROCEDURE
Revisions to New York’s Estate Powers and Trusts Law (EPTL) enacted in 2008 were intended to correct inadvertent failures of a spouse to correct provisions to eliminate ex spouses as beneficiaries. The Matter of Suggs  involves just this type of situation. When the decedent and his spouse divorced, the court made provisions concerning the disposition… Continue Reading

Court of Appeals to Hear Missing Will Case

Posted in PRACTICE AND PROCEDURE
The Estate of Robyn Lewis reported in the Watertown Daily Times  presents a state of facts perfect for a bar examination question.  When Robyn Lewis and her husband James Simmons divorced in Texas in 1966, Robyn retained ownership of a home in upstate New York. Even though the couple had executed “mirror” wills   (in which… Continue Reading

Appellate Division Rules On Application To Revoke Letters Testamentary

Posted in PRACTICE AND PROCEDURE
The Appellate Division of the Second Department has recently denied a motion to immediately suspend Letters Testamentary in the Matter of Mercer (2014 NY Slip Op 05186). SCPA 711 and 719 provide that the Surrogate may suspend or revoke letters where there is proof of a serious breach of fiduciary duty. This involved the improper conversion… Continue Reading

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

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Summary Judgment Granted To Void Trust For Lack Of Capacity

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Adjournment Of 1404 Examination Extends Time To File Objections

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Don’t Let Your Case Become A Lunchroom Munchy!

Posted in PRACTICE AND PROCEDURE
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.… Continue Reading

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

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Appellate Court Upholds Obtjections To Probate In Spite Of Waiver

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

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

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

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

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Petitioner Loses Her Standing –And Her Case

Posted in PRACTICE AND PROCEDURE
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,… Continue Reading

DNA Test Ordered By Surrogate In Case Of First Impression

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Court Leaves Door Open For Foreign Heir To Exercise Fiduciary Rights

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Trustee’s Duty Requires Undivided And Undiluted Loyalty

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

Bid To Compel Accounting Fails

Posted in PRACTICE AND PROCEDURE
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… Continue Reading

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

Posted in PRACTICE AND PROCEDURE
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… Continue Reading