In Estate of Aoki, the New York County Surrogate’s Court recently denied a motion for summary judgment to enforce a waiver of a testamentary power of appointment that had been signed by the decedent. Eric Penzer discusses the decision in this week’s blog entry.
Continue Reading Fiduciary Relationship Leads to Allegations of Constructive Fraud

The First Department has issued a noteworthy decision in determining that an in terrorem clause would be triggered by a revocation proceeding. Jaclene D’Agostino discusses the case in this week’s entry.
Continue Reading In Terrorem Clause Construed to Apply to Revocation Proceeding

The Second Department has recently issued two decisions that expand the parameters of disqualification from entitlement to the spousal right of election. In Matter of Berk and Campbell v. Thomas, the Appellate Division addressed situations in which the statutory limitations on disqualification failed to render equitable results. Jaclene D’Agostino discusses the decisions in this week’s entry.
Continue Reading Appellate Division Cites Equitable Factors In Denying Entitlement to Elective Share

Last week, the Second Department overturned a determination of the Kings County Surrogate’s Court that had disqualified an executrix based upon her selection of counsel. But while holding that letters should be reinstated, the Appellate Division also directed the fiduciary to obtain new representation. Eric Penzer discusses the decision in this week’s entry.
Continue Reading Estate Fiduciary Wrongly Deprived of Counsel of Choice?

Surrogate Riordan of Nassau County recently issued a decision declining to expand the reach of the “after born statute” to non-marital children, acknowledged by the decedent only after his will had been executed. Eric Penzer discusses the case in this week’s entry.
Continue Reading No “Wiggle Room” In After-Born Statute

In Matter of Feller, a contested probate proceeding that was decided last week in Monroe County, the Surrogate addressed typical objections pertaining to due execution, testamentary capacity, and undue influence. The decision provides a cohesive illustration of the standards and considerations that Surrogates routinely utilize in addressing these allegations. Jaclene D’Agostino discusses the case in this week’s entry.
Continue Reading Summary Judgment Granted, Dismissing Objections and Admitting Will to Probate

Last week, the Court of Appeals rendered a significant decision regarding the extent of discovery that may be conducted without triggering an in terrorem clause. In Matter of Singer, objections to probate were never filed. However, the issue presented was whether a beneficiary’s decision to depose the decedent’s prior attorney, a form of discovery not protected by the safe harbor provisions of EPTL 3-3.5 or SCPA 1404, triggered the two in terrorem clauses set forth in the propounded will. Jaclene D’Agostino discusses the case in this week’s blog entry.
Continue Reading Court of Appeals: Extra Deposition Did Not Violate In Terrorem Clause

A recent decision emanating from the Kings County Surrogate’s Court provides another interesting application of the rules on entitlement to an elective share. In Matter of Atiram, 2009 NY Slip Op 52356(U), the petitioner sought a determination as to her right of election under EPTL 5-1.1A. She had married the decedent in 1952, but…