When asked for advice as to how to avoid the destructive kind of litigation which characterizes a contested estate, many lawyers will probably opt for a well-constructed in terrorem  clause –a legal poison pill which threatens a potential contestant with the loss of his or her legacy.

Continue Reading How To Avoid An Estate Fight

The story of Hugette Clark, a reclusive copper heiress who died in 2011 at the age of 104 just keeps on getting stranger. Worth hundreds of millions of dollars at her death, she spent the last 20 years of her life as a private pay patient at New York’s Beth Israel Hospital. As the New York Times now reports, she was not in need of hospital treatment when she entered the hospital but was allowed to stay there "as long as the hospital didn’t need her bed". She was billed millions of dollars for her two decade stay at the hospital during which time she also made multi- million dollar gifts of cash and art to the institution as well as a million dollar bequest in her will.

 

Continue Reading Hugette Clark Saga Continues With Shocking Revelations That The Reclusive Heiress Was Ripped Off By A New York Hospital

The New York Law Journal has reported a decision of Nassau County Surrogate Edward McCarty III in the matter of the Will of Barboni, 2013-373014(April 25) which upheld the nomination of an executor whose two children both contested the choice, claiming that he had unduly influenced their father.

The court pointed out that the aggrieved children had attacked their father’s selection "in very broad strokes without any documentation or supporting evidence". Mere conclusory allegations in the absence of a showing of "good cause" or serious wrongdoing would not be sufficient to disqualify the nominee.

It is important to realize that the law is going to give a testator every opportunity to have the final say in the disposition of his or her worldly possessions, a job  made all the more difficult by the absence of the one person who could have been called upon to explain it all. It is therefore necessary to come up with substantial proof if one is to challenge a decision made from the grave. Simple bare bones allegations will not allow one to do this successfully.

Richmond County Surrogate Robert J. Gigante has ruled that a trust executed by an 88 year old decedent 61 days before her death was void for lack of mental capacity in the Matter of the Estate of Muriel Donaldson reported at 956 NYS2d 840. In this matter, the court granted summary judgment based upon the testimony of the decedent’s physician and the drafting attorney.The court takes pains in its decision to differentiate between fraud, lack of capacity and undue influence, dwelling particularly on the difference between testamentary capacity and the level of capacity needed to understand a contract.

Continue Reading Summary Judgment Granted To Void Trust For Lack Of Capacity

The Supreme Court’s Appellate Division has affirmed an order issued by Nassau County Surrogate Edward McCarty in the Matter of Palma A. Pascale 102 AD 3rd 796 which granted objectant’s motion to compel production of certain documents prior to the completion of SCPA 1404 examinations. SCPA 1404 provides that objections must be filed within ten days of the completion of examinations. Here, however, objectant sought to leave the examinations open and incomplete subject to the production of the demanded documents. The appellate court ruled that the Surrogate providently exercised his discretion in directing the production of the material and providing that the objections would not have to be filed until materials were produced and the examinations completed.

The Appellate Division of the Fourth Department has upheld the decision of  the Erie County Surrogate which dismissed objections to the nomination of an  executor in the Matter of the Estate of Carmen J. Russo reported at 954N.Y.S.2d 395 (A.D. 4 dept 2012). The decedent’s daughter filed objections to probate, claiming that the proposed executor had a potential conflict of interest which would prevent serving as a fiduciary.

Continue Reading Appellate Court Upholds Choice Of Executor

New York County Surrogate Nora Anderson has denied summary judgment and ordered a trial to determine  whether or not letters testamentary issued in 1979 should be revoked and a will made one week later in 1978 admitted to probate in its place. The case, The Will Of  Elmer H. Bobst is reported in today’s New York Law Journal. The will offered by the objectants  was recently discovered by the decedent’s great granddaughter and it differs markedly from the one originally admitted to probate. The estate was worth more than ten million dollars 34 years ago.

Continue Reading Court Denies Summary Judgment Where Ancient Wills Clash 34 Years After One Was Admitted To Probate

Your lawblogger frequently gets questions about how to obtain records of an estate. The Surrogate’s Court is a court of public record and every document filed is available to anyone. You can get copies of the entire estate of your Aunt Minnie who died in 1912 if that is what you would like. The difficulty is that every one of the state’s 62 Surrogate’s Courts has its own procedures as to how to do this. The New York County Surrogate’s Court has recently circulated a  memo as to how to obtain its records which you can seehere. As this notice mentions, it is necessary to check with the clerk of the court in the county where the records you are seeking are kept, information available from the link contained in the memo.The clerk will inform you of the procedures his or her court has for either coming to court to retrieve the records or of having them sent to you.

Keep in mind that this means that once an estate is filed there are no secrets. If you think you are not getting all the information you should have, get the estate file from the court clerk and bring a copy to your lawyer who can explain your options to you.

Last year, I reported on the death of Hugette Clark, an eccentric copper mining heiress with an estate of hundreds of millions of dollars who died in May 2011 at 104 and no readily identifiable next of kin. I received inquiries from at least two ambitious folks who wanted to join the "I am Hugette Clark’s next of kin" derby but had no way of proving their claims. Somehow, I think that I am not the only lawyer in this club. Today, theNew York Post has published an update of the Clark estate’s progress (or lack of same) through the New York County Surrogate’s Court.

Continue Reading Hugette Clark’s Estate Continues In Total Disarray

Reviewing the decision of  Monroe County Surrogate Edmund A. Calvaruso which awarded the petitioner’s attorney $5,955, after the executor appealed, the Fourth Department  Appellate Division reduced the original fee to $2,977.50. This decision, in the Matter of the Estate of Katharine Dressauer N.Y.S.2d 760 also sets forth the factors by which a legal fee is determined. These factors include " the time and labor expended, the difficulty of the required skill to handle the problems presented, the attorney’s experience, ability and reputation, the amount involved , the customary fee charged for such services, and the results obtained"

Continue Reading Don’t Let Your Case Become A Lunchroom Munchy!