Courts greatly appreciate when parties settle their disputes by agreement. Settlements alleviate the courts of the burden of overwhelming caseloads, and further the public policy of encouraging parties to order their affairs by contract rather than relying on statute and common law. As the Surrogate’s Court recently reiterated in Matter of Eckert, “stipulations of
The Court of Appeals Takes a Look at an Undue Influence Claim from a Non-Jury Trial
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.
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The Answer is Almost Always No
When clients ask whether they can “sue for legal fees,” the courts continue to reiterate that the answer is almost always no; that the American Rule still controls. In our latest post, Frank Santoro discusses recent decisions in the contexts of trusts and estates litigation and guardianship litigation that speak to fee shifting and exceptions to the American Rule. …
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Testator Intent and In Terrorem Clauses
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…
Treasure and Trinkets
It is easy to be cynical about the “pots and pans,” “tchotchkes,” and “junk” – – the property that is often divided in a contentious manner at the bitter end of an estate litigation, or sometimes forgotten after years of litigation. An ongoing dispute in one of my cases led me to reflect on a…
“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…
Speculation, Estate Planning, and Legal Malpractice
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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Sharp as a Tack . . . Clear as a Bell
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.
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A Flood . . . in the Basement
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.
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Dishonesty and Improvidence as Grounds for Disqualification of a Fiduciary
A recent decision of the Richmond County Surrogate’s Court addressed a frequently litigated issue in Surrogate’s Court litigation – – whether the proposed or nominated fiduciary should be disqualified from serving in a fiduciary capacity on the grounds of “dishonesty” or “improvidence.” In the Estate of George Mathai a familiar dynamic was in play –…