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The COVID-19 pandemic has forced litigants to wrestle with the dilemma of waiting for a jury trial or moving forward more expeditiously by way of a bench trial.  Recently, the Appellate Division, Fourth Department, and the Court of Appeals passed on the issue of undue influence arising out of a Surrogate’s Court bench trial. Frank Santoro discusses the decisions in our latest post.
Continue Reading The Court of Appeals Takes a Look at an Undue Influence Claim from a Non-Jury Trial

In April 2020, Governor Cuomo issued Executive Order 202.14, authorizing the remote witnessing of wills in the midst of the COVID-19 pandemic. Earlier this week, Broome County Surrogate’s Court issued what appears to be the first reported New York decision addressing the admission to probate of a remotely witnessed will. Rob Harper discusses the decision in our latest post.
Continue Reading Admission of Remotely Witnessed Will to Probate

SCPA § 1404 requires that “at least two attesting witnesses must be produced before the court and examined before a written will is admitted to probate.” Very often, litigators think of examinations pursuant to SCPA § 1404 as examinations before trial that are conducted under Article 31 of the CPLR. But they are not. Hillary Frommer discusses this topic in our latest post.
Continue Reading A Reminder that Pre-Objection SCPA § 1404 Exams are Not Simply Article 31 “Depositions”

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…

To object to the probate of a will, party must have a pecuniary interest that would be adversely affected by the admission of the instrument to probate. In Estate of Saunders, the Kings County Surrogate’s Court recently issued two decisions addressing the standing arguments of litigants in this context. Hillary Frommer discusses these cases in our latest entry.
Continue Reading Sometimes It’s Just a Question of Standing

Very often, when the proponent of a will (and sometimes even the attorney-draftsperson or witness) is questioned about the decedent’s mental state and the decedent’s instructions, the reflexive response is that the decedent was “as sharp as a tack” and was “as clear as a bell.” But overselling a decedent’s capacity and clarity of communication using tired metaphors may result in the trier of fact becoming suspicious of the proponent, perhaps perceiving the proponent as dishonest where other evidence reveals that the decedent likely had diminished capacity. Frank Santoro discusses the issue of testamentary capacity in our latest entry.
Continue Reading Sharp as a Tack . . . Clear as a Bell

A recent case decided by the Richmond County Surrogate revisits the law pertaining to probating lost or damages wills. In Matter of Larsen, the decedent’s will, apparently damaged in a flooded basement to the extent that the signatures thereon were washed clean, was admitted to probate. Frank Santoro discusses the decision in our latest entry.
Continue Reading A Flood . . . in the Basement

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?