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.

In this proceeding before the Westchester County Surrogate’s Court, the Testator’s first wife and children filed objections to the accounting submitted by the Public Administrator claiming that assets were either unaccounted for or undervalued. In this matter, the separation agreement made by the decedent with the objectant provided that he would make a will leaving one half of his net estate to the couple’s children.

In its decision, the court points out that an accounting party has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate and must show by a fair preponderance of the evidence (FYI, this is a normal civil burden of proof requiring the party with the burden to prove his or her case with 51% of the evidence. Enough proof just to "tip the scales".)  that his or her account is accurate and complete. Significantly, however, the objectant also has a burden to meet. It is necessary for the objectant to come forward with evidence to establish that the account is inaccurate or incomplete. This must be shown before the accounting party is required to defend the accounting.

In this matter, the court found that the accounting party had fully accounted for all of the decedent’s assets and the objectants had failed to come forward with evidence sufficient to raise a triable issue of fact that the account was inaccurate or incomplete.