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 of tangible property held by the executor. The appellate court opined that:
"[w]hile the Surrogate is clearly granted the exceptional authority to summarily remove executors without the formality of commencing a separate proceeding, the authority to exercise the ultimate sanction summarily is not absolute. The Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding" (Matter of Duke, 87 NY2d at 472-473 [internal citations omitted; emphasis added])."


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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. 


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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

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.


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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

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"


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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.


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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.


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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"


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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