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"

Continue Reading Don’t Let Your Case Become A Lunchroom Munchy!

 

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.

Continue Reading A Stipulation Made In Open Court Will Probably Rust If Left In The Rain

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.

Continue Reading Holocaust Survivor’s Estate Ordered To Return Ancient Gold Artifact To Berlin Museum

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"

 

Continue Reading Appellate Court Upholds Obtjections To Probate In Spite Of Waiver

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 the best interests of the estate.

 The Matter of the Estate of Jane Grisson 2007-1804/C  (reported in the NY Law Journal at p. 17 on May 6), Surrogate Peter J Kelly applied the doctrine of res judicata to block the attempt of a fiduciary from revisiting a real estate dispute which had been litigated in the Supreme Court in 2007. Res judicata provides that once a matter has been adjudicated by any court of competent jurisdiction, it cannot be the subject of a new action. The basic idea here is that you only get one bite at the apple and cannot run to a new court for a new hearing in front of a new judge. Surrogate Kelly makes the point that even if the first court’s decision was erroneous, that incorrect result is binding for all time absent a successful appeal which was obviously not taken here.

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.

Continue Reading Conclusory Statements Are Not Sufficient To Raise An Issue Of Fact As To A Will’s Validity

New York’s Appellate Division recently affirmed a decision of Nassau County Surrogate John Riordan which disinherited the daughter of a decedent who had brought a petition to contest her father’s will and for a construction of the residuary clause which left $221,000 to various charities. In the Matter of Bernstein  2007 NY Slip Op 04625, in addition to this charitable bequest, the sum of $20,000 was left to each of the decedent’s children. The will also contained an in terrorem clause which provided that anyone challenging the will would forfeit any interest they might otherwise have had in the decedent’s testamentary estate. By violating the in terrorem clause, petitioner lost any interest she might have had in her father’s estate. Therefore, the court went on to find that she did not have any standing to sue.

It should be noted that generally, courts will not hear a petition of a party who does not have an interest in the matter over which they are suing. Once, petitioner unsuccessfully challenged the will, she also lost any standing which she might have otherwise had to bring any legal proceeding in the matter.

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.

Continue Reading DNA Test Ordered By Surrogate In Case Of First Impression