PRACTICE AND PROCEDURE

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The New York State Supreme Court’s Third Department Appellate Division has affirmed  the Madison County Surrogate’s  decision in the Estate of Wetherill 828 N.Y.S. 2d 722  which surcharged and discharged an executor for improper exercise of his fiduciary duty. This was a matter where two executors were appointed to serve under the decedent’s will but only one was disciplined.Continue Reading Executor Surcharged and Discharged For Failing to Properly Manage Estate

New York State Supreme Court’s Fourth Department  Appellate Division has reversed a decree of Monroe County Surrogate Edmund A. Calvaruso and, by  so doing has enabled Elizabeth McNabb to share in a testamentary trust originally created by Florence S. Woodward in 1926. The trust, which has a current day value of approximately 9.5 million dollars was established with shares of stock from the Jello fortune. This decision has been reported in the March 23, 2007 New York Law Journal in the Matter of Accounting by Fleet Bank, Docket No 229.
Continue Reading Jello Heiress to Receive Just Desserts

Nassau County Surrogate John Riordan has ruled in favor of reconstructing a testamentary trust in the Estate of Goldie Hyman, a case reported in the March 7th issue of the New York Law Journal at page 21. Even though this matter was uncontested, it presents a rather interesting fact pattern, especially in light of today’s increasingly complicated web of medicaid regulations.
Continue Reading Court Allows Reform of Trust to Reflect Testator’s Intent

In theEstate of Jerome Silverstein, 827NYS2d 50,a case before the New York State Supreme Court’s First Appellate Division, it was held that trustees breached their fiduciary responsibility of loyalty by allowing immediate family members to occupy trust property at no rent or for rent far below fair market value.
Continue Reading Trustee Breached Fiduciary Duty For Failing To Charge Fair Market Rental For Trust Property

Today’s New York Law Journal reports a decision of Surrogate Glen in New York County who refused to grant an executor’s  motion for summary judgment to dismiss the objections of the decedent’s mother. In the Estate of Jeffrey A. Katz 0468/2002, the decedent had committed suicide two and one half months after executing a will leaving an estate in excess of one million dollars to his accountant.
Continue Reading Motion For Summary Judgment Fails To Overcome Mother’s Objections To Probate

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.
Continue Reading Unsupported Objections Lead To Judicial Sanctions

The subject of undue influence is treated once more by the New York Supreme Court’s First Appellate Division in In Re Will of Ryan, 824 N.Y.S. 2d 20(A.D. 1st Dept 2006). After being disinherited by their mother, under a will which she made at the age of 89, the decedent’s children filed objections to their mother’s will claiming that she was unduly influenced by their older brother Tomas.Continue Reading Undue Influence Held Provable By Circumstantial Evidence

The  Surrogate’s Court Procedure Act (Section 2307(3) (iii) provides that an attorney-drafter of a will which nominates him or her as an executor can receive a full executor’s commission only if the the testator executes a disclosure statement worded in "substantial compliance" with a specific model. This model requires the testator to acknowledge that he or she has been told that by signing the disclosure statement, there will be a resulting cost to the estate by enabling the drafter to claim a full commission.
Continue Reading Attorney-Drafter of Will Loses Claim To Full Executor’s Commission