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.

Continue Reading Guardian Ordered To Repay $403,000 To Judge’s Estate

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 .Continue Reading Loyalty To Mother Held Violation Of Fiduciary’s Obligations To Other Beneficiaries

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. 
Continue Reading Surrogate’s Decision Revives Prior Will

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…

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.  
Continue Reading Lost Will Raises Issue of Revocation And Matter Is Ordered To Trial

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.Continue Reading Appellate Division Fails To Find Undue Influence

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.
Continue Reading Appellate Court Upholds Waiver Of Spousal Right Of Election

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.
Continue Reading Some Pointers About Rebutting The Presumption Of Competence