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 .

Continue Reading Bid To Compel Accounting Fails

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.  

Continue Reading Appellate Court Holds Look-back Period To Run From Date Of Asset’s Liquidation And Not Its Gifting

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.

Continue Reading Beneficial Disposition To Attesting Witness Held Void

Just as Brooke Astor was a dominating force in the social scene of New York for decades, the trial of her son Anthony Marshall and her former lawyer Francis X Morrissey has been dominating the legal scene here with a daily articles in the local press. Today’s New York Times reports an interesting chapter in the case with an account of the testimony of G. Warren Whitaker who was questioned extensively about his role in the alleged forgery. Whitaker is not under any suspicion of acting improperly, but it was he who prepared the codicil which re-directed some sixty million dollars from charitable bequests to Marshall who was allegedly looking to create a larger estate for his wife Charlene. Prosecutors have  subjected  Whitaker to withering questions about his role in the preparation of the codicil which was requested by Marshall and Morrissey and, according to the prosecution, forged by those two defendants at a time when Ms. Astor was suffering from Alzheimer’s Disease and presumably lacked testamentary capacity. 

Readers of today’s Times article may find the links to other recent stories about the Astor trial to be of interest.

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 of looting Ms Astor’s estate and forging a codicil to her will. The court took notice of the fact that discovery is often stayed in civil proceedings to safeguard the rights of criminal defendants until their criminal trials are completed but also observed that Mr. Marshall was himself  the petitioner in the estate matter and would not be entitled to this relief. Moreover, the court stated that  "The Fifth Amendment privilege ‘protects a person only against being incriminated by his own compelled testimonial communications’ (United States v Doe, 465 US 605, 611; see Fisher v United States, 425 US 391, 408). Because it is undisputed that the appellant was not compelled to create the documents at issue here, his Fifth Amendment privilege against self-incrimination ‘would not be violated by the fact alone that the [documents] on their face might incriminate [him]’ " In short, Messrs Marshall and Morrissey will be compelled to produce documents demanded as part of the civil discovery procedure even though these documents may tend to incriminate them in the criminal case pending against them. 

Recently, Long Island was rocked by news of the tragic and shocking murder of  Betty Ann Parente and her two daughters by her husband, Garden City lawyer William Parente who then took his own life in a Maryland hotel. Barely has the community digested the enormity of this crime and the loss of a popular and talented family when the legal implications of how estates are affected by murder have surfaced as reported in today’s Newsday. The order of the deaths has particular significance . So does the obvious fact that if –as it seems– William Parente was the last member of his family to die, his distributees would be unable to inherit the assets of his wife and daughters should it be determined that he had murdered them.  This article gives us a good picture of the complexities of an estate which is bound to have some uncharted twists and turns as it wends its way through the Nassau County Surrogate’s Court.

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.

Continue Reading Trust Beneficiares Held Not To Be Entitled To Order Directing Costs To Be Paid By Unsuccessful Objectants

With the advent of modern science comes legal issues we never dreamed of in law school (at least if we went to law school in the seventies or earlier!). Witness the decision of the First Department of New York’s Appellate Division in Speranza v. Repro Lab Inc reported at 875 N.Y.S.2d 449. In affirming a decision of New York County Supreme Court Justice Jane Solomon,  it was declared that the administrators of the estate of the plaintiffs’ late son had no right to the semen specimens deposited in the defendant tissue bank  and the administrators would also not be entitled to an injunction against the destruction of the specimens.

Continue Reading Court Orders Destruction Of Frozen Semen Specimens

Island Federal Credit Union v. Gerald Smith 875 N.Y.S.2d198 is a somewhat offbeat case which resulted in an interesting decision by the Second Department of the Appellate Division reversing a Suffolk County Supreme Court Decision. The bank was seeking to recover the proceeds of a bank account opened in the name of a probate estate  against the son of the deceased executor. The son was sued both individually and in his capacity as his father’s executor. The bank claimed that the proceeds were paid by mistake to the son .

Continue Reading Court Decision Rules That Estate Bank Account Can Not Be Jointly Held With Executor

Leona Helmsley may have been known as the "Queen of Mean" but today’s Wall Street Journal reminds us that she left about five billion dollars to her foundation , The Leona M. and Harry B. Helmsley Charitable Trust which had a mission statement directing that a large portion of these funds be provided to the care and welfare of dogs. This lead to an outcry that  charities providing for the needs of humans were being neglected in favor of our four-legged friends. The trustees of the estate together with New York Attorney General Andrew Cuomo petitioned the New York County Surrogate for a ruling as to whether or not the mission statement could be binding upon the trustees’ decisions to apply the funds of the trust.  Recently, Surrogate Troy Brewer ruled that the trustees were free to use their own discretion in making grants from the funds they held in trust. It has now been revealed that approximately 136 million dollars have been awarded in the first wave of grants — 1 million of which was applied to charities for the benefit of animals.

As the Journal advises us, a trust creator who wants to make sure his or her wishes are followed by the trustees should either give very specific directions or simply dispose of the funds while still alive. Of course, the question remains as to whether the same result would have been reached with a much smaller trust fund. While five billion dollars is a staggering amount to contemplate in a charitable trust focused upon canine beneficiaries, I would think it far more likely that a smaller sum ( a few million , for instance) might have a better chance of being disposed of totally in line with the wishes of the trust creator.