My colleagues have written on the enforceability of in terrorem clauses, and the courts continue to confront challenges in reconciling the testator’s intent to impose an in terrorem condition with the rights of beneficiaries to challenge the conduct of their fiduciary. The New York County Surrogate’s Court’s recent decision in Matter of Merenstein provides further
“Can I sue them for legal fees?”
This is a common question from clients involved in litigation – – especially estate litigation. As a general rule, a party cannot recover attorney’s fees for successfully prosecuting or defending a lawsuit. This is the “American Rule,” and it is engrained in our legal system. New York courts are wary of deviating from the American…
Releases: End of the Road or Just a New Beginning?
The fiduciary who thinks a receipt and release is the answer to all future claims for an accounting and liability may have a surprise in store. Over the past several months, Surrogates have explored the issue of receipts and releases, and have provided insight into just how far they will go to “save the day.” The New York County Surrogate’s Court’s recent decision in Matter of Ingraham is a case in point. Ilene Cooper discusses the decision in our latest post.
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Ademption Results from Attorney-in-Fact’s Sale of Specifically Bequeathed Asset
In Matter of Conklin, 2015 NY Slip Op 25094 (Sur Ct, Nassau County 2015), the Nassau County Surrogate’s Court addressed, among other things, whether specifically bequeathed property sold by an attorney-in-fact prior to the decedent’s death, adeemed. The decedent’s will had specifically devised the subject property to his two children and first wife, with a direction that it be sold after his death and the proceeds divided among the three of them. But a sale prior to death meant that the proceeds would become part of the decedent’s residuary estate, of which one of his attorneys-in-fact was the sole beneficiary. Jaclene D’Agostino discusses the case in our latest entry.
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The Slayer Rule Revisited
As I wrote in a prior post, dated February 25, 2011, concerning the Estate of Dianne Edwards, the “slayer rule” articulated by the Court of Appeals in Riggs v. Palmer provides that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found …
Two Recent Decisions That Have Validated and Invalidated Inter Vivos Gifts
In our latest entry, Ilene S. Cooper discusses two recent decisions addressing the validity of inter vivos gifts, and the contrasting results of each case.
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Potential Creditor of Trust Beneficiary Not Interested Party In Accounting Proceeding
Nassau County Surrogate Edward W. McCarty, III recently held that potential creditors of a living trust beneficiary were not interested parties in the trust accounting proceeding. Eric Penzer discusses the decision in our latest entry.
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Fiduciary Beware: Contested Accounting in the Face of Exoneration Clause Results in Liability for Inter Vivos Trustee
In the recent decision of Matter of the Accounting of Tydings, the Bronx County Surrogate’s Court addressed the misconduct of the trustee of a lifetime trust, in view of an exoneration clause contained in the instrument. Ilene Cooper discusses the case in our latest entry.
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Trustee Permitted to Amend Accounting to Provide for Commissions
This week, Jack Barnosky discusses a recent case in which the language in a receipt and release agreement was essential to a decision permitting the amendment of an accounting.
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