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New York Trusts & Estates Litigation

Category Archives: Probate

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What is a Confidential Relationship and How Does it Affect a Probate Contest?

Posted in Probate
Estate litigators arguably see more probate contests than any other type of conflict. While the details are always unique, they almost always include allegations that someone unduly influenced the decedent to change his or her will to either disinherit, or favor, a particular person. These cases also often include an allegation -- which is usually contested -- that the purported influencer was in a “confidential relationship” with the decedent. The frequency of such claims beg the questions (1) what exactly is a “confidential relationship,” and (2) what is the practical benefit to an objectant in establishing that one existed? Jaclene D'Agostino addresses these questions in our latest entry.… Continue Reading

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

Dishonesty and Improvidence as Grounds for Disqualification of a Fiduciary

Posted in Fiduciaries, Probate, Trusts
A recent decision of the Richmond County Surrogate’s Court addressed a frequently litigated issue in Surrogate’s Court litigation – – whether the proposed or nominated fiduciary should be disqualified from serving in a fiduciary capacity on the grounds of “dishonesty” or “improvidence.” In the Estate of George Mathai a familiar dynamic was in play – – there… Continue Reading

“Easy” Cases Make Bad Law Too

Posted in Probate
In a decision that could well cause even the most casual trusts and estates practitioners to scratch their proverbial heads in wonder, the Appellate Division, Third Department, in Matter of Buchting, 111 AD3d 1114, 975 NYS2d 794 (3d Dept 2013), recently affirmed the determination of the Surrogate’s Court, Greene County, dismissing a “due execution” objection to probate, notwithstanding that both attesting witnesses invoked their Fifth Amendment rights against self-incrimination and refused to testify at their SCPA 1404 examination concerning the execution of the will. Eric Penzer discusses the decision in our latest entry.… Continue Reading

Testamentary Capacity, Summary Judgment and a Testator’s Diagnosis of Dementia

Posted in Probate
Although summary judgment in a contested probate proceeding historically has been rare, the recent trend has been for Surrogate’s Courts to grant such relief with increasing frequency. Consistent with that recent trend, Surrogate’s Courts have granted summary judgment dismissing probate objections alleging that a testator lacked testamentary capacity, notwithstanding the testator’s diagnosis of dementia before executing the propounded will. Our latest entry, written by Robert M. Harper, discusses several cases in which a testator’s diagnosis of dementia prior to executing the propounded will was insufficient to raise a triable issue of fact to withstand summary judgment dismissing a capacity objection.… Continue Reading

When a Black Letter Rule Meets a Gray Area: the “Slayer Rule” and the Insanity Defense

Posted in Probate
In a 2010 criminal proceeding, Leatrice Brewer admitted to drowning her three children in a bathtub, and entered a plea of "not responsible by reason of mental disease or defect." Now, in the related Surrogate's Court proceeding pending in Nassau County, the administrator of the children's estates has requested application of the "slayer rule" to prevent Ms. Brewer from benefitting from her actions. Spencer L. Reames discusses the case, and the possible boundaries of the slayer rule vis a vis the insanity defense, in our latest entry.… Continue Reading

Issues of Undue Influence

Posted in Probate
One of the most common objections in probate contests is the allegation that the propounded instrument was a product of undue influence. In our latest entry, Ilene Cooper reflects upon two decisions from 2011 in which the Surrogate's Courts of New York and Kings Counties addressed such claims, which arose from contrasting fact patterns.… Continue Reading

Who are the Distributees?

Posted in Probate
Administering the estate of a decedent who dies intestate is sometimes more complicated than one of a decedent who dies leaving a will. The distributees of an intestate decedent are often unknown, leading to citation by publication and a kinship hearing with respect to anyone who appears alleging to be an heir. Frank Santoro discusses these situations in our most recent entry.… Continue Reading

Undue Influence or Duress?

Posted in Probate
As recognized by Surrogate Glen in the recent decision of Matter of Rosasco, the distinction between undue influence and duress is often blurred in the context of contested probate proceedings. Frank Santoro explains the differences between the two legal concepts in our most recent entry.… Continue Reading

The Slayer Rule

Posted in Probate
New York's "slayer rule" generally prohibits an individual from benefiting from his own wrongdoing. However, due to the unusual facts of a case that is developing in Suffolk County, a murderer may indirectly inherit his victim's estate through intestacy. Robert Harper discusses the situation in this week's entry.… Continue Reading

Estate Fiduciary Wrongly Deprived of Counsel of Choice?

Posted in Fiduciaries, Probate
Last week, the Second Department overturned a determination of the Kings County Surrogate's Court that had disqualified an executrix based upon her selection of counsel. But while holding that letters should be reinstated, the Appellate Division also directed the fiduciary to obtain new representation. Eric Penzer discusses the decision in this week's entry.… Continue Reading

No “Wiggle Room” In After-Born Statute

Posted in Probate
Surrogate Riordan of Nassau County recently issued a decision declining to expand the reach of the "after born statute" to non-marital children, acknowledged by the decedent only after his will had been executed. Eric Penzer discusses the case in this week's entry.… Continue Reading

Summary Judgment Granted, Dismissing Objections and Admitting Will to Probate

Posted in Probate
In Matter of Feller, a contested probate proceeding that was decided last week in Monroe County, the Surrogate addressed typical objections pertaining to due execution, testamentary capacity, and undue influence. The decision provides a cohesive illustration of the standards and considerations that Surrogates routinely utilize in addressing these allegations. Jaclene D'Agostino discusses the case in this week's entry.… Continue Reading