2016

In two recent decisions, Surrogate Lopez Torres of Kings County denied petitions for guardianship under SCPA Article 17-A, demonstrating the strict circumstances under which guardians are appointed under this particular statute. Unlike under Article 81 of the Mental Hygiene Law, the court has no discretion or authority to limit or tailor the powers of a guardian under Article 17-A. Thus, in both proceedings, the court was quite cognizant of the fact that an Article 17-A guardianship is the most restrictive form of guardianship available in New York. Hillary Frommer discusses the decisions in our latest entry.
Continue Reading Article 17-A Guardianship: It is Not for Everyone

In construing an in terrorem provision, or any part of a will, the paramount consideration is identifying and carrying out the testator’s intent. Although paramount, the testator’s intention will not be given effect if doing so would violate public policy. For example, an in terrorem provision that purports to prevent a beneficiary from questioning a fiduciary’s conduct is void as contrary to public policy. The recent decision of Matter of Sochurek illustrates the difficulty in reconciling the testator’s intention in respect of an in terrorem condition with the rights of beneficiaries to obtain an accounting or otherwise challenge the actions of their fiduciary. Brian Corrigan discusses the case in our latest entry.
Continue Reading Coordinating a Testator’s Intention with Public Policy Can Prove Challenging When Construing an In Terrorem Condition

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

In 2010, the Appellate Division, Second Department, made it clear in two decisions — Matter of Berk and Campbell v. Thomas — that principles of equity grounded in rules of forfeiture can adversely impact a surviving spouse’s entitlement to an elective share. The Second Department recently addressed the Berk matter again, specifically with respect to the issues to be determined and burdens of proof to be imposed at trial. Ilene Cooper discusses the decision in our latest entry.
Continue Reading Proof of Wrongdoing and the Right of Election

A recent decision of the Kings County Surrogate’s Court demonstrates the importance of thoroughly analyzing all aspects of a statute of limitations defense prior to making a dismissal motion. In Matter of Coiro, the court denied such a motion, determining that a turnover proceeding was timely. Notably, the parties disputed both the applicable limitations period and the date of the claim’s accrual. Side-stepping both those issues, the court determined that a statutory toll rendered the claim timely . Eric Penzer discusses the decision in our latest entry.
Continue Reading Court Denies Motion to Dismiss Turnover Proceeding as Time Barred

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 Representation of Charities by the Attorney General

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 Contingency Fees – Size Matters