When a petitioner offers a will for probate, and the propounded instrument’s validity is contested, objectants oftentimes raise undue influence as an objection to the admission of the will to probate. By alleging undue influence, an objectant essentially contends that the propounded will resulted from another person’s influence on the testator, and, therefore, reflects the
Will New York Law Allow for the Electronic Execution of Wills?
Under New York’s Electronic Signatures and Records Act, a person can electronically sign many types of documents that have legal significance (Technology Law §§ 301, § 304 |– 306). At the present time, however, wills and trusts are not among them (Technology Law § 307[1]). A legislative proposal that
The Presumption of Revocation that Oftentimes Applies to Lost Wills
New York law generally requires that, to have a will admitted to probate, a party offering the will for probate must file the original instrument with the Surrogate’s Court (Margaret V. Turano, Practice Commentaries: SCPA § 1407 [McKinney’s]). When an original will is lost, Surrogate’s Court Procedure Act (“SCPA”) § 1407 sets forth the requirements
Invalidating Legal Documents and Transactions in Article 81 Guardianship Proceedings
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
Lengthy Opinion Delivered Regarding In Terrorem Clause
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
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?
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?