It is well established that the right to waive the attorney-client privilege survives the death of a client, but case law is still developing concerning who can effectuate a post-death waiver and in what circumstances. The Fourth Department recently addressed this question for the first time in Matter of Thomas. Eric Penzer discusses the decision in our latest post.
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Court Denies Motion to Dismiss Turnover Proceeding as Time Barred
A recent decision of the Kings County Surrogate’s Court demonstrates the importance of thoroughly analyzing all aspects of a statute of limitations defense prior to making a dismissal motion. In Matter of Coiro, the court denied such a motion, determining that a turnover proceeding was timely. Notably, the parties disputed both the applicable limitations period and the date of the claim’s accrual. Side-stepping both those issues, the court determined that a statutory toll rendered the claim timely . Eric Penzer discusses the decision in our latest entry.
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“Easy” Cases Make Bad Law Too
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.
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Appellate Division: Issue of Fact Prevents Summary Disposition of Abandonment Allegations
Eric Penzer recently discussed a case where constructive abandonment was asserted to disqualify a surviving spouse from an elective share. In our latest entry, Eric addresses a decision regarding actual abandonment as the basis for disqualification, and the hurdles that parties involved with such a claim may face.
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No Sex, No Elective Share?
Constructive abandonment is a rarely litigated basis for denying a surviving spouse his or her elective share, as it is very difficult to prove. In our latest entry, Eric Penzer discusses a recent case addressing the issue.
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Surrogate Removes Fiduciary Sua Sponte For Misrepresentations In Petition
A recent post to this blog discussed a case in which a court declined to remove a fiduciary based on allegations of a potential conflict of interest, but in the absence of actual misconduct on the part of the fiduciary. While it is certainly rare for a court to remove a fiduciary in the
Appellate Division Decides Case of First Impression Concerning “Adopted Out” Child’s Right Of Inheritance
The term “adopted-out” child, commonly used by the courts, refers to a child adopted out of his or her biological family, i.e., a child placed for adoption by his or her biological family. A detailed discussion of the inheritance rights of adopted-out children is available here. Recently, in a case of first impression
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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Appellate Division Decides Case Of First Impression Regarding Joint Tenancy Issue
The Appellate Division recently addressed an unusual issue in the case of Trotta v. Ollivier, namely, whether the estate of a joint tenant may sue the surviving joint tenant to recover payments the decedent had made for purchase and upkeep of the property. Eric Penzer discusses the decision in our latest entry.
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Court Decides Issue Of Standing To Participate In Cy Pres Proceeding
If the intended recipient of a charitable bequest can no longer be identified, an executor or trustee will often commence a cy pres proceeding in the Surrogate’s Court to determine the appropriate recipient of the funds. In our latest entry, Eric Penzer discusses a decision in the context of a cy pres application, focusing on the standing of a possible alternative recipient of the subject bequest to participate in the proceeding.
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