In the past, New York Courts have demonstrated a willingness to apply the theory of promissory estoppel, to overcome the legal requirements of the Statute of Frauds. The Restatement (Second) of Contract, Section 139, endorses this principle, providing:

“A promise which the promisor should reasonably expect to induce action or forbearance on the part of

While most decisions rendered by the Surrogate’s Court result from an affirmative request for relief, occasionally the court will address an issue on its own motion when justice or the exercise of its inherent or statutory power requires. In our latest post, Ilene Cooper examines two recent opinions wherein the Surrogate’s Court again acted on its own initiative to achieve what it considered the proper result.
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In Gersh v. Nixon Peabody, LLP, the court addressed a legal malpractice claim brought by a decedent’s surviving spouse in connection with the couple’s estate planning. After settling a claim with the decedent’s children from a prior marriage that was made based on a separation agreement between the decedent and their mother, the surviving spouse alleged that the attorneys, who knew the decedent had been married twice before, failed to properly investigate his duties under separation agreements in the course of the representation. Frank Santoro discusses the case in our latest post.
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Powers of attorney and trust instruments have each been the subject of many an estate plan. They each have also been the subject of multiple estate litigations. In combination, the two have served as fodder for controversies surrounding the agent’s authority over the trust and its terms. Two decisions — Matter of Goetz and Matter of Perosi v. LiGreci — have addressed the issue, albeit with different results. Both decisions provide valuable instruction for drafters and litigators. Ilene Cooper discusses these cases in our latest entry.
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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.
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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.
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On October 28, 2014, the Court of Appeals rendered its long awaited decision in In re Lawrence, reversing the decision by the Appellate Division in which it was held that (1) a revised retainer agreement, under which the law firm received 40% of the net recovery (i.e. $44 million) was procedurally and substantively unconscionable and that fees should be determined under the original retainer; and (2) the claim to recover gifts made by the client to her attorneys was timely. Hillary Frommer discusses the decision in our latest entry.
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