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New York Trusts & Estates Litigation

Category Archives: Legal Profession

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Representation of Charities by the Attorney General

Posted in Legal Profession, Probate
Many estate practitioners are familiar with contested matters in which a charity interested in the proceeding is cited, as is the Attorney General, and both the Attorney General and private counsel for the charity appear in the proceeding. In such cases, both the Attorney General and the charity’s counsel represent the charity. What happens, however, when the status and identity of the charitable beneficiary is less than certain? That was precisely the situation facing the New York County Surrogate’s Court in the probate contest involving the much-publicized estate of Huguette Clark. John Morken discusses this portion of the Clark case in our latest entry.… Continue Reading

Contingency Fees – Size Matters

Posted in Legal Profession
While the Court of Appeals last year upheld the validity of contingency fee agreements in estate matters, particularly in litigation, where it approved contingency fees of over forty million dollars when the actual time spent was a fraction of that value, a recent New York County Surrogate’s Court case, Estate of Fanny Goldfarb, confirms that the size of an estate can still be a major factor in determining the reasonableness of a contingent fee, even though the services rendered and the result achieved were exemplary. Jack Barnosky discusses the decision in our latest post.… Continue Reading

In re Lawrence: What the Court of Appeals Says About Gifts from Client to Lawyer

Posted in Legal Profession
On October 28, 2014, the Court of Appeals rendered its long awaited decision in In re Lawrence, reversing the decision by the Appellate Division in which it was held that (1) a revised retainer agreement, under which the law firm received 40% of the net recovery (i.e. $44 million) was procedurally and substantively unconscionable and that fees should be determined under the original retainer; and (2) the claim to recover gifts made by the client to her attorneys was timely. Hillary Frommer discusses the decision in our latest entry.… Continue Reading

Attorney’s Fees: Not for the Taking

Posted in Legal Profession
While attorney’s fees incurred by the fiduciary are generally reimburseable from an estate as a reasonable and necessary expense of administration, this is not the rule with respect to the legal fees incurred by a beneficiary. The different standard that applies was recently examined by Surrogate Mella in In re Frey, NYLJ, July 25, 2013,… Continue Reading

Infants as Parties to Stipulations of Settlement in Surrogate’s Court Proceedings

Posted in Legal Profession
Generally, where an infant or someone under another disability is a necessary party to an action, it is the parent or guardian of the property who represents him in that action.  If the disabled individual has no such guardian, then the court shall appoint a guardian-ad-litem to represent his interests (see CPLR 1201).  It is… Continue Reading

Validity of Decedent’s Marriage the Focus of Application to Vacate Stipulation of Settlement

Posted in Legal Profession
In the recent case of Matter of Cheek, Surrogate Holzman of Bronx County addressed two issues that arise with some frequency in the context of Surrogate's Court litigation - the validity of a decedent's marriage, and a party's attempt to vacate a stipulation of settlement. Jaclene D'Agostino discusses the decision in our latest entry.… Continue Reading

Estates May Pursue Legal Malpractice Claims on Behalf of Decedents

Posted in Legal Profession
The Court of Appeals has rendered a landmark decision, chipping away at privity in holding that an estate fiduciary may maintain a legal malpractice claim against its decedent’s estate tax planning attorneys for negligent representation.  Until now, privity, i.e., a legal connection between two parties, was a strict condition precedent to maintaining a legal malpractice… Continue Reading

Widow Barred from Bringing Legal Malpractice Action against Husband’s Estate Planning Attorneys

Posted in Legal Profession
This week's entry, written by Jaclene D'Agostino, discusses a recent New York County Supreme Court decision dismissing a widow's legal malpractice claim against her husband's estate planning attorneys. The rationale: lack of privity, despite the fact that the defendant attorneys also represented the widow in her own estate plans, and jointly with her husband in other matters.… Continue Reading