PRACTICE AND PROCEDURE

In the Matter of Reuben Hoppenstein, No. 2015-2918/A (N.Y. Sur. Mar. 31, 2017) the New York County Surrogate ruled as appropriate the distribution of a life insurance policy to a new trust which eliminated certain beneficiaries of the distributing trust. This distribution was made by a trustee vested with absolute discretionary power  by the terms

Revisions to New York’s Estate Powers and Trusts Law (EPTL) enacted in 2008 were intended to correct inadvertent failures of a spouse to correct provisions to eliminate ex spouses as beneficiaries. The Matter of Suggs  involves just this type of situation. When the decedent and his spouse divorced, the court made provisions concerning the disposition

The Estate of Robyn Lewis reported in the Watertown Daily Times  presents a state of facts perfect for a bar examination question.  When Robyn Lewis and her husband James Simmons divorced in Texas in 1966, Robyn retained ownership of a home in upstate New York. Even though the couple had executed “mirror” wills   (in which

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