The Estate of Rudolph G. Gulbrandsen NY Slip Op 50814(U) presents some interesting aspects of the issue of conflict of interest involving a fiduciary. The decision, by Dutchess County Surrogate James D. Pagones was republished on May 15 at page 23 of the New York Law Journal and deals with the case of Sara Jane Gulbrandsen who was convicted of killing her husband Rudolph and is now serving a prison sentence for that crime.

Continue Reading Conflict Of Interest Must Involve Actual Misconduct To Warrant Removal Of Fiduciary

New York’s Fourth Department Appellate Division has ruled against an attempt at revoking a waiver and consent to probate in theMatter of the Estate of Ashley Robert Titus 2007 Slip Op 3435. In this action, the petitioner was a CPA with a Masters in business administration who signed the document before a Surrogate and then claimed that she did not realize that this would forever foreclose her from challenging her father’s will. She had been provided with a copy of the will prior to executing the waiver and consent.

The court determined that her allegations that she did not understand the significance of the waiver and consent were conclusory and unsubstantiated. It further opined that " A party seeking to set aside a probate decree entered upon his consent must show that such consent was obtained by fraud or overreaching…, was the product of misrepresentation or misconduct…, or that newly-discovered evidence, clerical error or other sufficient cause justifies n(the relief sought)"

 This decision is simply one more example of the need to get good legal advice before you sign any significant legal document. The failure to make the right choice in an estate matter may be both embarrassing and quite costly. Spend the time– and a few dollars– and sit down with a competent estate practitioner before you make an irreversible decision .

A recent decision of New York State’s Third Appellate Division reversed the Albany County Surrogate in the Matter of the Estate of Frederick A. Scale 830N.Y.S.2d 618(A.D. 3 Dept 2007). It was determined that the lower court had wrongfully relied upon the affidavit of a will drafter rather than looking to the testator’s true intent as to which charitable organization he wished to have benefit from his estate. Continue Reading Testator’s True Intent Must Be Determined In Construction Proceeding

I recently came across an article by Arden Dale of Dow Jones Newswire, published on cantonrep.com which is not only hilarious, but also underlines the impending chaos facing estate planners. As many of you may know, the estate tax exemption is rising steadily (it is now two million dollars for an individual and four million for a married couple) until the year 2010 when the tax will be completely eliminated –only to revert to a tax of 55% of anything above the old one million dollar limit in 2011! 

Continue Reading Estate Tax Sunset Provision Leads To Gallows Humor

Law Professor Gerry Beyer’s Wills Trusts and Estates Prof Law blog reports the sad and cautionary tale of a (now former) member of the Texas Bar who evidently thought he could get away with just about anything. Not only did this disgrace to my profession thumb his nose at the regulations requiring the filing of accountings, he even forged legal documents so he could fraudulently engineer the release of estate funds from the banks holding them. There really are rules (strict ones) protecting the public from conduct such as this. This story is a prime example.

In Re Estate of Ruparshek828N.Y.S.2d623 was decided by New York’s Third Department Appellate Division earlier this year. In modifying a decision of the Otsego County Surrogate’s Court, it once more stressed the heavy burden of proof needed to establish undue influence. Continue Reading Otsego Surrogate Finds Lack of Undue Influence

The New York State Supreme Court’s Third Department Appellate Division has affirmed  the Madison County Surrogate’s  decision in the Estate of Wetherill 828 N.Y.S. 2d 722  which surcharged and discharged an executor for improper exercise of his fiduciary duty. This was a matter where two executors were appointed to serve under the decedent’s will but only one was disciplined.

Continue Reading Executor Surcharged and Discharged For Failing to Properly Manage Estate

As a rather interesting post-script to the earlier accounts of socialite Brooke Astor, an inventory filed by J.P Morgan Chase values her assets at 130.9 million dollars. Today’s New York Times gives the detailed inventory of the wealth of Ms. Astor who will celebrate her 105th birthday this Friday. Last fall, it was reported here that Ms. Astor had become the center of a court battle between her son Anthony Marshall and her grandson with charges of elder abuse and neglect raising the awareness of the need to protect the safety and rights of our oldest members of society –especially those who may not have a nine figure bank account. Continue Reading Inventory Values Brooke Astor’s Net Worth At 130.9 Million Dollars

New York State Supreme Court’s Fourth Department  Appellate Division has reversed a decree of Monroe County Surrogate Edmund A. Calvaruso and, by  so doing has enabled Elizabeth McNabb to share in a testamentary trust originally created by Florence S. Woodward in 1926. The trust, which has a current day value of approximately 9.5 million dollars was established with shares of stock from the Jello fortune. This decision has been reported in the March 23, 2007 New York Law Journal in the Matter of Accounting by Fleet Bank, Docket No 229. Continue Reading Jello Heiress to Receive Just Desserts

Nassau County Surrogate John Riordan has ruled in favor of reconstructing a testamentary trust in the Estate of Goldie Hyman, a case reported in the March 7th issue of the New York Law Journal at page 21. Even though this matter was uncontested, it presents a rather interesting fact pattern, especially in light of today’s increasingly complicated web of medicaid regulations. Continue Reading Court Allows Reform of Trust to Reflect Testator’s Intent