Island Federal Credit Union v. Gerald Smith 875 N.Y.S.2d198 is a somewhat offbeat case which resulted in an interesting decision by the Second Department of the Appellate Division reversing a Suffolk County Supreme Court Decision. The bank was seeking to recover the proceeds of a bank account opened in the name of a probate estate  against the son of the deceased executor. The son was sued both individually and in his capacity as his father’s executor. The bank claimed that the proceeds were paid by mistake to the son .Continue Reading Court Decision Rules That Estate Bank Account Can Not Be Jointly Held With Executor

Sweeping changes in New York’s law concerning powers of attorney are due to take effect on September 1, 2009. The legislature has revised Chapter 644 of the laws of 2008 to amend the state’s General Obligations law . The changes are complex and affect, among other things, not only the instrument’s  form but also the level of…

The question of attorney’s fees has been revisited in the Matter of Eleanor E. Goliger 871 N.Y.S.2d 689. The Appellate Division’s Second Department upheld a decision of Nassau County Surrogate John Riordan which fixed the reasonable value of  an attorney’s services to the estate’s executor at $25,000. The problem was that the attorney had billed and received $169,277.59. Her appeal of the court’s order that she return $144,277.59 was unsuccessful and the lower court’s decision was affirmed.Continue Reading Surrogate’s Court Bears Ultimate Responsibility For Deciding A Reasonable Attorney’s Fee

While the Surrogate’s Court has a wide jurisdictional reach to adjudicate issues which involve all facets of a decedent’s estate, the Matter of Pearl B Kalikow 2009 Slip Op 00539  represents somewhat of an exception to this rule. The Appellate Division’s Second Department upheld Nassau County Surrogate John Riordan’s decision to recognize an arbitration agreement made by the decedent in her lifetime.Continue Reading Appellate Division Upholds Arbitration Agreement

The Matter of James E. Davis 869 N.Y.S.2d 99  involves the challenge to a petition for a compulsory accounting before the Kings County Surrogate by the estate’s administratrix. The administratrix took the position that the petitioner lacked standing to challenge the proceeding. In granting the petitioner’s motion, Surrogate Lopez-Torres directed the medical examiner to provide sufficient biological material to conduct genetic marker testing.Continue Reading Appellate Division Sets Rules For Genetic Marker Testing In Estate Proceedings

The Third Department of New York’s Appellate Division has upheld a decision of the Albany County Surrogate which granted summary judgment and dismissed objections to the probate of a will in the Matter of Turner      recently decided on November 6, 2008. Interestingly enough, the objections failed to challenge the testamentary capacity of the testatrix while claiming that she suffered from "insane delusions" and was the subject of undue influence.Continue Reading Objectant Fails To Establish That “Insane Delusions” Warranted Denial Of Probate

Your faithful lawblogger was pleased to end up on the long side of an interesting decision from Nassau County Surrogate John Riordan in the Matter of Estate of Rose Rappaport , 866 N.Y.S.2d 483 which was published in the New York Law Journal on October 23. The decedent had executed a will which provided that the bulk of her estate would be paid into a testamentary trust for the benefit of her daughter Susan who is partially blind ,suffers from a host of physical and emotional disabilities and is unable to care for herself. While the will named Susan’s three siblings as executors, it totally failed to nominate any trustees. When I first was given the instrument to offer for probate, my first impression of the inartfully drawn will was to compare the trust to a staircase leading to a landing — and stopping there! Obviously, it was necessary to petition the court for a will construction to reform the will.Continue Reading Surrogate Directs Will Be Reformed To Include Supplemental Needs Trust

A recent decision by the Second Department of New York’s Appellate Division in The Matter of Dubin reported as Slip Opinion 07126 on September 23rd overturned a decision of Nassau County Surrogate which found that a joint account with right of survivorship had passed outside of the decedent’s estate and was not a testamentary asset.Continue Reading Appellate Court Directs Turnover Of Joint Account