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.

Continue Reading Son’s Attempt To Establish Undue Influence Fails

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 had expired. In this matter,  the parties had stipulated as to a date certain by which time objections were to be filed. There was confusion to whether or not this date had actually been extended by further agreement and the attorney for the estate moved the admission of the will to probate when no objections had been filed on a timely basis. When the objectant did file objections, the petitioner moved to strike them and the court denied the motion and issued a decision permitting the filing . In its decision, the appellate court cited Section 1410 of the Surrogate’s Court Procedure Act which provides that the court has discretion to extend the time for filing objections and to accept untimely filed objections "so as not to dismiss potentially valid concerns regarding a propounded will on procedural grounds".

The Brooke Astor trial is in full swing in New York County Supreme Court . The range of relevant articles published over the past ten days in the New York Times is so broad that I have simply provided a link to all of the Times stories published since the beginning of the month. The criminal trial of Brooke Astor’s son Anthony Marshall and her former attorney Frank Morrissey for allegedly forging her will and looting her estate truly has something for everyone.

Continue Reading The Brooke Astor Trial — Something For Everyone

The Godfather of Soul has been gone for years but his estate, it seems, will be legal fodder for years to come. The Associated Press has reported that Jacque Hollander, his former publicist is suing James Brown‘s estate in Chicago for control of a charitable trust which she claims she was responsible for setting up. She claims that as the only surviving trust partner, she has the right to control the distribution of trust assets which include, among other things, the singer’s home and the royalties from "I Feel Good"  (which the ultimate winner of this protracted legal war certainly will!). With considerable luck, this blog will still be publishing when the last issue in this estate is finally decided. If so, you will be able to read about it here.

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

Sweeping changes in New York’s law concerning powers of attorney are due to take effect on September 1, 2009. The legislature has revised Chapter 644 of the laws of 2008 to amend the state’s General Obligations law . The changes are complex and affect, among other things, not only the instrument’s  form but also the level of fiduciary responsibility imposed, the need for the agent to keep detailed records and to make them available and provisions for using the power to make major gifts. In fact, the  effective date  for the new power was extended from January to give the bar a chance to become familiar with the new law. It looks as if we are all going back to school!

Jury selection has begun here in New York in the trial of Anthony D. Marshall and attorney Francis Morrissey who stand accused of forging the will of Marshall’s late mother, socialite Brooke Astor who died in August  2007 at the age of 105 and who left an estate of roughly 132 million dollars. In the year prior to his mother’s death, Marshall had been the subject of an investigation that he had neglected and abused her and had looted substantial amounts of her assets.

Continue Reading Astor Trial Jury Selection Gets Underway

The question of attorney’s fees has been revisited in the Matter of Eleanor E. Goliger 871 N.Y.S.2d 689. The Appellate Division’s Second Department upheld a decision of Nassau County Surrogate John Riordan which fixed the reasonable value of  an attorney’s services to the estate’s executor at $25,000. The problem was that the attorney had billed and received $169,277.59. Her appeal of the court’s order that she return $144,277.59 was unsuccessful and the lower court’s decision was affirmed.

Continue Reading Surrogate’s Court Bears Ultimate Responsibility For Deciding A Reasonable Attorney’s Fee

While the Surrogate’s Court has a wide jurisdictional reach to adjudicate issues which involve all facets of a decedent’s estate, the Matter of Pearl B Kalikow 2009 Slip Op 00539  represents somewhat of an exception to this rule. The Appellate Division’s Second Department upheld Nassau County Surrogate John Riordan’s decision to recognize an arbitration agreement made by the decedent in her lifetime.

Continue Reading Appellate Division Upholds Arbitration Agreement

The Matter of James E. Davis 869 N.Y.S.2d 99  involves the challenge to a petition for a compulsory accounting before the Kings County Surrogate by the estate’s administratrix. The administratrix took the position that the petitioner lacked standing to challenge the proceeding. In granting the petitioner’s motion, Surrogate Lopez-Torres directed the medical examiner to provide sufficient biological material to conduct genetic marker testing.

Continue Reading Appellate Division Sets Rules For Genetic Marker Testing In Estate Proceedings