Much has been written about courts invalidating instruments or transactions after a person’s death. Courts invalidating instruments or transactions during a person’s lifetime is discussed less often. A mechanism for doing so is found in Article 81 of the Mental Hygiene Law (“MHL”), which governs proceedings to appoint a guardian for an alleged incapacitated person’s…

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It is a rare day that the Court of Appeals, New York’s highest Court, deals with trust and estate matters, let alone something as granular as the validity of an in terrorem clause.  But speaketh they did, on April 17, 2025, in a lengthy opinion with a 13-page dissent to boot (Carlson v. Colangelo, 2025 NY Slip Op 02264). 

In this case, the Decedent never married but he was survived by a romantic partner, Kristine M. Carlson (“Carlson”), and by his daughter Crissy Colangelo (“Colangelo”), whose mother was a prior romantic partner of the Decedent.  The Decedent executed a pour-over Will and Revocable Trust the month before he died.  Under the Trust, the Decedent left his residence in Cortlandt Manor, New York to Carlson and his “interest” in an LLC which owned real estate to Colangelo with a statement that “it is Grantor’s sincere wish and desire that Crissy Colangelo provide a stream of income, not to exceed the sum of $350,000 in total, to Kristine M. Carlson.”  The Decedent named Colangelo as Trustee.

Both instruments contained in terrorem clauses.  The Trust clause provided:

In the event that any heir, distributee, beneficiary…shall contest any aspect of this Trust, or the distribution of the Grantor’s assets pursuant to his Last Will, inter vivos Trust agreement, beneficiary designations or non-probate beneficiary designations, or shall attempt to set aside, nullify, contest or void the distributions thereof in any way …

then the challenger would forfeit benefits under the instrument. 

After a number of failed attempts to resolve issues between them, Carlson commenced an action in Supreme Court seeking to compel Colangelo to distribute the residence to her, a declaration that Carlson was a pre-mortem 50% owner of the LLC, a direction that Carlson is entitled to the $350,000 income stream from the LLC, an accounting for the LLC, and punitive damages. Continue Reading Lengthy Opinion Delivered Regarding In Terrorem Clause

On February 14, 2025, I will be speaking at the Suffolk Academy of Law’s annual Elder Law Update, addressing current developments in artificial intelligence (“AI”) that are relevant to trusts and estates practice, among other topics.  In preparing for that presentation, I came across a recent Surrogate’s Court, Saratoga County, decision in Matter of Weber, in which the court found that a party’s counsel has a duty to disclose to the court the fact that the party’s hearing evidence has been generated by AI.  I now address the Weber court’s AI-based findings below.

AI has been “defined as being any technology that uses machine learning, natural language processing, or any other computational mechanism to simulate human intelligence, including document generation, evidence creation or analysis, and legal research, and/or the capability of computer systems or algorithms to imitate intelligent human behavior” (Matter of Weber, 220 NYS3d 620, 635 [Sur Ct, Saratoga County 2024]).  It “can be either generative or assistive in nature” (id.).  Generative AI is “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples” (id.).  AI “assistive materials are any document or evidence prepared with the assistance of AI technologies, but not solely generated thereby” (id.).Continue Reading Does Counsel Have a Duty to Disclose to a Surrogate’s Court the Fact That Hearing Evidence That Counsel Proffers Has Been Generated by Artificial Intelligence?

When reforming a will or trust, the Surrogate’s Court “changes the language of the will [or trust instrument] itself by the addition or deletion of words in an attempt to conform [the instrument] to the decedent’s intent” (Matter of Stahle, NYLJ, Jan. 23, 2002, at 32 [Sur Ct, Onondaga County]).  Historically speaking, courts have been “hesitant to reform wills [and trusts,] unless the reformation effectuates the [testators and grantors’] intent” (Matter of Brill, NYLJ, Aug. 17, 2017, at 23 [Sur Ct, Bronx County]; Matter of Dousmanis, 190 AD3d 548, 549 [1st Dep’t 2021]).

However, when the reformation of a will or trust will result in a settlement of litigation, courts have been less hesitant to reform wills and trust instruments (Marilyn G. Ordover & Charles F. Gibbs, “Correcting Mistakes in Wills and Trusts”, NYLJ, Aug. 6, 1998, at 25).  This is because New York State has a strong public “policy encouraging family settlements” (Matter of Harburg, NYLJ, Aug. 12, 1997, at 26 [Sur Ct, New York County]).  Thus, in cases in which the interested parties have agreed to reform wills or trusts in order to achieve settlements, courts repeatedly have approved of the reformations to which the parties have stipulated (Matter of Schmitt, NYLJ, July 3, 2000, at 1 [Sur Ct, Westchester County]; Matter of Schwartz, NYLJ, Jan. 22, 1992, at 25 [Sur Ct, Westchester County]; Matter of Wilkie, NYLJ, Jan. 17, 1992, at 35 [Sur Ct, Westchester County]).      Continue Reading Creative Writing: Reforming Wills and Trusts to Achieve Settlements

A power of attorney (“POA”) allows a principal to assign their agent authority to make certain legal and financial decisions on their behalf. Because a POA can give an agent tremendous power over the principal’s affairs, claims of elder abuse in connection with a POA are common. While litigation concerning claims of abuse of a POA often occurs in the context of contested probate proceedings, special proceedings under Mental Hygiene Law (“MHL”) Article 81 (“Article 81”) and the General Obligations Law (“GOL”) increasingly involve claims that an agent is abusing a POA. This post delves into the options available under the MHL and GOL when one suspects abuse of a POA.

Advanced Directives in Guardianship Litigation. Because a guardianship under MHL Article 81 puts the alleged incapacitated person’s (“AIP”) constitutionally protected civil liberties at stake, the goal of Article 81 is to safeguard the AIP and further their best interests using the least restrictive form of intervention (see Matter of Samuel S. (Helene S.), 96 AD3d 954, 957-958 [2d Dept 2012]). Advanced directives, such as a POA or a health care proxy, being less restrictive than an Article 81 guardianship, often eliminate the need for one (see Matter of Isadora R., 5 AD3d 494 [2d Dept 2004]). Yet to obviate the need for guardianship, the advanced directive(s) must be working effectively, and the agent must have acted in the AIP’s best interests (see Matter of Rachel Z. (Jack Z.–Anna B.), 181 AD3d 805 [2d Dept 2020]).Continue Reading Abuse of Powers of Attorney

Suppose that a loved one has been missing for years, for no reason at all, and without contacting family or accessing any of his or her assets.  Sadly, this scenario is one that many families have had to confront in New York State.  This blog post addresses the steps that a missing loved one’s family members may wish to take in order to have their absentee relative declared deceased and to gain access to that person’s assets.
Continue Reading My Relative Has Been Missing for Years. What Do I Need to Do to Have That Relative Declared Deceased?

In 2021 and 2022, I wrote about Surrogate’s Court decisions that addressed the admission of remotely witnessed wills to probate in New York State.  Since then, Surrogate’s Courts have issued at least two more decisions addressing the validity of remotely witnessed wills.  I now write to provide an update about the validity of remotely witnessed wills, having been involved in two cases that addressed the issue in 2023.
Continue Reading The Admission of Remotely Witnessed Wills to Probate in New York

Artificial Intelligence (“AI”)  made legal and mainstream news in 2023.  In a highly publicized and widely discussed case, Mata v. Avianca, Inc., the United States District Court for the Southern District of New York sanctioned attorneys for citing to non-existent, fake cases generated by Open AI’s ChatGPT.  Despite Mata’s stark warning to the bar, AI-generated fake caselaw continues to appear in litigation nationwide.  

In Matter of Samuel, the Kings County Surrogate’s Court confronted a lawyer’s careless use of AI in a contested probate proceeding.  The objectant’s counsel submitted “fake caselaw resulting from Artificial Intelligence hallucinations” in reply papers submitted on a summary judgment motion.  Five of the six cases cited in in the objectant’s reply papers were either erroneous or non-existent.  The court held that counsel violated the rule against “frivolous” litigation under 12 NYCRR 130-1.1 by making material misstatements to the Court concerning case law.

Surrogate Graham was careful to point out that AI is not, in and of itself, the problem.  While the court was “dubious” about attorneys using AI to prepare legal documents, it focused squarely on counsel’s failure to examine and scrutinize the ostensible authorities that AI cited in support of the objectant’s arguments.  The court found that counsel had sufficient time to review and analyze the AI generated reply papers and conduct a simple cite check on reliable legal search engines, which would have revealed AI’s reliance on non-existent, fake caselaw.  Counsel’s conduct, and not AI, was the real problem. Continue Reading Matter of Samuel – Artificial Intelligence Hallucinates and an Incapacitated Person Makes a Will

For trust and estate litigators, the federal court experience invariably begins – and sometimes ends — with an analysis of the probate exception to federal diversity jurisdiction.  Two recent Southern District cases examine the probate exception.  Part 1 of this blog series introduces the probate exception and discusses an “easy” case; Woitovichv. Schoenfeld.  Part 2 of this series, coming soon (hopefully), examines the tougher case of Bulgariv. Bulgari. Continue Reading The Probate Exception to Federal Jurisdiction – From Woitovich (Part 1) to Bulgari (Part 2)

A discovery proceeding pursuant to SCPA 2103 may be commenced by any legal representative of the estate, including a preliminary executor or a temporary administrator. Ed Baker provides an overview of these proceedings in our latest post.
Continue Reading SCPA 2103 Proceedings – A Fiduciary’s Right to Commence a Licensed Fishing Expedition