PRACTICE AND PROCEDURE

Subscribe to PRACTICE AND PROCEDURE via RSS

The time-honored principal of construing a will or trust as written and to determine the settlor’s intention from the unambiguous language of the instrument itself was ratified once more by the decision of the New York Appellate Division’s Second Department to partially affirm a decision written by Queens County Surrogate Robert Nahman in the Matter of Terranova 873 N.Y.S.2d 651(A.D. 2d Dept 2009). In this action, a trust beneficiary objected to a trust accounting on the grounds that the trustees had retained unproductive property and also that the trustees had purchased an insurance policy on the life of the beneficiary through a company which one of them had owned.The premiums were paid by making loans from the trust to the life insurance trust which owned the policies. Even though this certainly constituted self-dealing, the surrogate denied objectant’s motion for summary judgment on her objections.Continue Reading Self-Dealing By Fiduciary Trustees Permitted Where Allowed By Trust Instrument

Edward Rogowsky died in March 2001 after leaving the stock in his Brooklyn coop to his life partner of fifteen years, Peter McGarry. The decedent’s will also named McGarry as his executor and made the plaintiffs — his two sons– the alternate residuary beneficiaries of his will but left them nothing of value. One would think that after decedent’s sons had consented to the admission of the will to probate and defendant’s appointment as executor, they would not have sued the defendant for failing to honor an oral promise that they alleged he had made to honor a wish of the decedent to bequeath his interest in the apartment to his sons in exchange for their promise not to contest the will. It took them nearly six years to mount this challenge.Continue Reading Back Door Post Probate Will Challenge Fails On Motion

This evening your lawblogger attended a seminar in the courtroom at the Nassau County Surrogate’s Court. The speakers were the clerks of the Surrogate’s Courts in several Long Island counties as well as New York County. The program underscored the differences between procedure in different counties.Continue Reading Surrogate’s Court Procedure Differers In Different Counties

Surrogate Thomas E. Walsh II of Rockland County has denied a probate petition where the proponent was unable to establish due execution pursuant to the requirements of the Estates Powers and Trusts Law. It would seem improbable that a will witnessed by three experienced accountants (two of them CPAs) would not pass muster but that was the case in the matter of the Will of Christopher E. DiPasquale, 709/09, decided this past August 28th and reported at page 29 of the New York Law Journal on September 12, 2008.Continue Reading Failure To Show Due Execution Of Will Leads To Denial Of Admission To Probate

A  case just handed down from New York’s Appellate Division Third Department, Matter of Paigo, 2008 NY Slip Op 06250   involves an interesting and successful challenge to the presumption of due execution which arises when the witnesses to a will sign a self-executing (or "living" affidavit) where they attest that the testator signed the…

New York’s Appellate Division has upheld a decision of New York County Surrogate Renee S. Roth which denied a petition aimed at discharging the public administrator. The case is the Estate of Jordan 859 N.Y.S.2d 447. The petition involved an application by first cousins of the decedent to revoke letters of administration previously issued to the public  administrator.Continue Reading Public Administrator Survives Distributees’ Attempt At Removal

Earlier, I reported here about the sad events surrounding the end of the life of former Kings County Civil  Court Judge John L. Phillips. Justice Phillips was a well-known and well-loved jurist whose last years were spent in a general decline. Ultimately it was necessary for a guardian to appointed to oversee his affairs. Several different judges and attorneys were appointed to handle that responsibility until the appointment of Emani Taylor Esq. in 2002.

Continue Reading Guardian Ordered To Repay $403,000 To Judge’s Estate

New York’s Fourth Department Appellate Division has handed a stunning blow to the Commandment to "Honor thy father and thy mother" when that Biblical directive conflicts with good old fashioned fiduciary obligations. In Re Mergenhagen 856 N.Y.S.389   reversed an earlier decision of the Erie County (Buffalo) Surrogate Barbara Howe which had dismissed a petition to remove a trustee of two irrevocable trusts and to annul the revocation of one of the trusts. In doing so, the court comes to two interesting findings .Continue Reading Loyalty To Mother Held Violation Of Fiduciary’s Obligations To Other Beneficiaries

A fairly interesting decision from the Broome County Surrogate deals with a will revoked by subsequent wills. In The Matter of the Will of Julianna B. Sharp 852 N.Y.S.2d 713 the doctrine of dependent relative revocation was held to apply to revive a will that had been properly executed and witnessed even though the decedent had written three subsequent wills, each of which revoked earlier wills. 
Continue Reading Surrogate’s Decision Revives Prior Will

New York’s Second Department Appellate Division has upheld a decision of Queens County Surrogate Robert Nahman that the the fact that an attorney-drafter of a will was also named as an executor and the trustee of a testamentary charitable trust did not raise a presumption of undue influence. In the Matter of Gladys Coopersmith 852 N.Y.S.2d…