PRACTICE AND PROCEDURE

Recently, your faithful lawblogger attended a seminar at the local bar association which was emceed by Nassau County Surrogate John Riordan. The surrogate took this opportunity to discuss  the recently decided case of Schoeps v. Andrew Lloyd Webber Art Foundation which is reported at 884 NYS2d396. This First Department Appellate Division case is of interest on several levels. It deals with the attempt of  a German national to recover a multi-million dollar Picasso painting which he alleged was part of a huge art collection sold for a fraction of its true value when the Nazis were seizing Jewish assets in pre-war Germany.


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Like so many of my readers, the mere mention of the Generation Skipping Tax causes my eyes to glaze over.  I usually break into a cold sweat before I consult the books –and the experts– in order to deal with a particular  GST problem. Your faithful law blogger still believes in calling in the experts in

New York’s Fourth Department Appellate Division has laid down the marker for a trustee’s fiduciary responsibility in Capital Heat, Inc. v. Michael R. Blatner Family Trust reported at  882 N.Y.S.2d 632. This matter involved a life insurance agreement made by the plaintiff with the defendant trust when the trustee was also a shareholder and

Erie County Surrogate Barbara Howe found that she lacked jurisdiction to compel an accounting by a successor guardian who had volunteered to administer a custodial account left for the benefit of the petitioner by his grandfather. In Re Gold is reported at 879 N.Y.S.2d 795. While the case itself is no more than a family food fight over what happened to less than five thousand dollars after a family member volunteered to handle the account when the petitioner’s grandmother (the original guardian) passed away, it brings to light an interesting conflict in the law .


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New York’s Fourth Department Appellate Division has made a ruling which should be of interest to those involved in estate planning and elder law. The Matter of Padulo v. Reed (2009 NY Slip Op 04813) concerned valuable savings bonds which had been purchased by the decedent during the 1970s and were given to family members in 2001. These bonds, however, were retained by the recipients and were not actually liquidated until 2004 and early 2005. Some of the proceeds were used to pay the expenses of the decedent in a nursing home.It was also found that proceeds had been deposited in a joint account with the decedent. In September 2005, the petitioner sought to have the decedent receive Medicaid benefits.  


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New York County Surrogate Kristen Booth Glenn has disqualified an attesting witness to a will from receiving a "beneficial disposition" under the will in the Matter of the Estate of Cynthia R. Wu 877N.Y.S.2d 886. In this matter, the executor had applied for an order directing the decedent’s brother — who was also the beneficiary of two life insurance policies– to pay his ratable share of the estate tax even though the will contained a clause specifically relieving him of any obligation to pay any estate taxes resulting from his receiving the proceeds of the policies. The matter was complicated by the fact that the brother – beneficiary was also one of the attesting witnesses to the will.


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Earlier today, New York’s  Appellate Division, Second Department published a decision In The Matter Of Astor denying Anthony D. Marshall a stay of discovery in the estate proceedings now underway in Surrogate’s Court. This is significant because Marshall, and his mother’s former attorney Francis   X Morrissey are  defendants in a criminal case where they are accused

New York  generally requires that litigants pay their own counsel fees unlike other states which subscribe to the "loser pays" policy. In keeping with this, the Appellate Division’s Third Department has upheld a ruling from the Warren County Surrogate in In Re Hyde 876 NYS2d196. This case involved a dispute between beneficiaries to a trust. A  judicial accounting had been rendered by the trustees with some beneficiaries approving it and others objecting. The trustees successfully defended their accounting and the beneficiaries who had not objected moved to have the legal expenses incurred in the trustees’ defense assessed against the shares of those beneficiaries who had unsuccessfully objected. The Surrogate denied the motion.


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The issue of undue influence was revisited recently by the Appellate Division in the Matter of Thaddeus Klingman 875 N.Y.S. 2d(A.D. 2 Dept 2009). Mr. Klingman learned the terrible news that he was suffering from terminal lung cancer and then proceeded to rescind a separation agreement, change the beneficiary of his life insurance and pension and execute a new will favoring his wife. His son’s objections to the will which were based upon  undue influence and fraud were dismissed upon motion prompting an appeal. The Appellate Division affirmed the Orange County Surrogate ‘s decision.


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The Second Department of New York’s Appellate Division has upheld a decision of Suffolk County Surrogate John M. Czygier in the Matter of Norma Anne Rizzi 875 N.Y.S.2d 254 which restates the right of the court to exercise its own discretion in permitting the filing of objections to probate after the time to do so