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 court had issued a decree in 1964  which settled the account of the executors to the estate and which identified the assets which would ultimately be used to fund the trust. It was therefore improper for the objectant to have ignored a judicial determination (albeit forty years old) which sufficiently identified trust assets, and to then have filed objections claiming that there were other missing assets which should have been used to fund the trust.

The court found that the trustees made a prima facie case that their account was accurate and complete. This finding therefore shifted to the objectant the burden of proving that the accounting was incorrect. In order to meet this burden it was necessary for the objectant to come forward with evidence to buttress his claim of impropriety which could not go forward merely on his affidavit that the accounting was inaccurate. Because he had evidently ignored several warnings from the court that his claims lacked merit and could not be proven, the Appellate Division upheld Surrogate Roth’s decision to impose sanctions.

There is a moral to this story for those of my readers who are not attorneys. Simply put, there is a time to realize that the court means business when it decides that a case cannot be supported by the facts at hand. When this occurs, it is often the best course to fold your tent, settle your legal bills, and slip away. There is a time for everything to end.