In a decision that could well cause even the most casual trusts and estates practitioners to scratch their proverbial heads in wonder, the Appellate Division, Third Department, in Matter of Buchting, 111 AD3d 1114, 975 NYS2d 794 (3d Dept 2013), recently affirmed the determination of the Surrogate’s Court, Greene County, dismissing a “due execution” objection to probate, notwithstanding that both attesting witnesses invoked their Fifth Amendment rights against self-incrimination and refused to testify at their SCPA 1404 examination concerning the execution of the will. Eric Penzer discusses the decision in our latest entry.
Continue Reading

Although summary judgment in a contested probate proceeding historically has been rare, the recent trend has been for Surrogate’s Courts to grant such relief with increasing frequency. Consistent with that recent trend, Surrogate’s Courts have granted summary judgment dismissing probate objections alleging that a testator lacked testamentary capacity, notwithstanding the testator’s diagnosis of dementia before executing the propounded will. Our latest entry, written by Robert M. Harper, discusses several cases in which a testator’s diagnosis of dementia prior to executing the propounded will was insufficient to raise a triable issue of fact to withstand summary judgment dismissing a capacity objection.
Continue Reading

In a 2010 criminal proceeding, Leatrice Brewer admitted to drowning her three children in a bathtub, and entered a plea of “not responsible by reason of mental disease or defect.” Now, in the related Surrogate’s Court proceeding pending in Nassau County, the administrator of the children’s estates has requested application of the “slayer rule” to prevent Ms. Brewer from benefitting from her actions. Spencer L. Reames discusses the case, and the possible boundaries of the slayer rule vis a vis the insanity defense, in our latest entry.
Continue Reading

Estate litigation oftentimes arises when parents favor one or more of their children over others in their estate plans. Fortunately, at least for the parents, they typically do not have to deal with the issues involved in the litigation, as they are deceased by the time that it arises. As the Second Department’s decision in

One of the most common objections in probate contests is the allegation that the propounded instrument was a product of undue influence. In our latest entry, Ilene Cooper reflects upon two decisions from 2011 in which the Surrogate’s Courts of New York and Kings Counties addressed such claims, which arose from contrasting fact patterns.
Continue Reading