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.
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Ademption Results from Attorney-in-Fact’s Sale of Specifically Bequeathed Asset
In Matter of Conklin, 2015 NY Slip Op 25094 (Sur Ct, Nassau County 2015), the Nassau County Surrogate’s Court addressed, among other things, whether specifically bequeathed property sold by an attorney-in-fact prior to the decedent’s death, adeemed. The decedent’s will had specifically devised the subject property to his two children and first wife, with a direction that it be sold after his death and the proceeds divided among the three of them. But a sale prior to death meant that the proceeds would become part of the decedent’s residuary estate, of which one of his attorneys-in-fact was the sole beneficiary. Jaclene D’Agostino discusses the case in our latest entry.
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Appellate Division Upholds Equitable Extension of Slayer Rule
New York’s “slayer rule” essentially provides that if an individual kills another person, he has automatically forfeited any interest he may have had in his victim’s estate. The rationale is simple – no one should financially benefit from his own crime. Applicability of the rule is generally straightforward, but in certain cases, the lines can become blurred — such as in Matter of Edwards, where the killer sought to inherit from his victim only indirectly, through the estate of the victim’s post-deceased daughter. Jaclene D’Agostino discusses the decision in our latest entry.
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Potential Conflict of Interest Insufficient to Disqualify Nominated Fiduciary
“A testator’s choice of executor should be given great deference” (see Matter of Palma, 40 AD3d 1157, 1158 [3d Dept 2007]). This rule is fundamental to the practice of trusts and estates law, yet is often challenged by those who want to disqualify or remove the testator’s nominee -with or without valid basis.
Infants as Parties to Stipulations of Settlement in Surrogate’s Court Proceedings
Generally, where an infant or someone under another disability is a necessary party to an action, it is the parent or guardian of the property who represents him in that action. If the disabled individual has no such guardian, then the court shall appoint a guardian-ad-litem to represent his interests (see CPLR 1201
Validity of Decedent’s Marriage the Focus of Application to Vacate Stipulation of Settlement
In the recent case of Matter of Cheek, Surrogate Holzman of Bronx County addressed two issues that arise with some frequency in the context of Surrogate’s Court litigation – the validity of a decedent’s marriage, and a party’s attempt to vacate a stipulation of settlement. Jaclene D’Agostino discusses the decision in our latest entry.
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Was it a Convenience Account?
The question of whether a joint account was truly intended as such, or was instead intended to be a convenience account, is a frequently litigated topic. Jaclene D’Agostino discusses this issue in our latest entry.
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19 Year-Old Instrument Denied Probate as Ancient Document
In a recent case emanating from Nassau County, Surrogate McCarty denied an uncontested application to probate a nineteen year old will under the common law “ancient document rule.” Jaclene D’Agostino discusses the decision in our latest entry.
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What is a Constructive Trust?
Often misunderstood or confused with an express trust, a constructive trust is an equitable remedy applicable in a variety of circumstances. Jaclene D’Agostino discusses the doctrine in our most recent entry.
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Exception to the American Rule: Shifting Objectants’ Legal Fees to the Surcharged Fiduciary
The American Rule provides that each party to a litigation generally remains responsible for his own legal expenses regardless of who prevails. In Matter of Lasdon, Surrogate Glen of New York County explained the few and narrow exceptions to that Rule, one of which pertains to cases of fiduciary misconduct. Jaclene D’Agostino discusses the decision in our latest entry.
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