PRACTICE AND PROCEDURE

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

An Objectant seeking to block a will’s admission to probate learned the hard way that there is nothing easy about doing this. The Appellate Division, Third Department held in In Re Doody 912 N.Y.S.2d 792(A.D. 3 Dept. 2010) that upon the petitioner making out a prima facie case for valid execution, conclusory allegations were not enough to raise a triable issue of undue influence or fraud.


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Bronx County Surrogate Lee Holzman, in a case of first impression, has found that a decedent’s posthumous non-marital son was entitled to posthumous DNA testing to determine his standing as a potential distributee of his late father. This decision on a motion in the Estate of Jermaine Michael Williams was rendered on December 3rd and was also reported in today’s New York Post appears to be the first time a request for posthumous testing was made on behalf of a posthumous child.


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