The recent opinion by the Appellate Division, Third Department, in In re Strom Irrevocable Trust III, 2022 NY Slip Op 01356, provides a cautionary tale to estate litigators who conduct SCPA 1404 examinations in the face of a trust instrument’s in terrorem clause. While in terrorem clauses are strictly construed, the Appellate Division found that the subject clause had been triggered as a result of conduct engaged in by the respondent during the course of a probate proceeding regarding the grantor’s will. Ilene S. Cooper discusses the decision in our latest post.
Continue Reading Third Department Examines In Terrorem Clause

While the removal of a fiduciary has long been the subject of Surrogate’s Court opinions, it is not often that the Appellate Division weighs in on the issue. However, in Matter of Epstein, the Second Department did just that, and issued an opinion that serves as an important guidepost for the kind of conduct that warrants removal. Ilene Cooper discusses the decision in our latest post. …
Continue Reading Appellate Division Addresses the Removal of a Fiduciary

Some of the most interesting estate litigation issues arise in proceedings to determine a surviving spouse’s entitlement to an elective share, particularly when there are claims of abandonment. Bret Cahn discusses certain abandonment decisions and the evidentiary issues raised therein, in our latest post.
Continue Reading THE CHALLENGE OF FINDING ADMISSIBLE EVIDENCE IN ABANDONMENT PROCEEDINGS

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…

From April 7, 2020 to June 25, 2021, New York Executive Order 202.14 authorized “the remote execution of wills” in New York State. Recently, in Matter of Holmgren, Queens County Surrogate Peter J. Kelly wrote a decision addressing the information that a self-proving affidavit must contain in order to prove the validity of a remotely executed will. Robert Harper writes about the decision in our latest post.
Continue Reading SURROGATE’S COURT PROVIDES GUIDANCE ON PROVING THE VALIDITY OF A REMOTELY WITNESSED WILL

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.
Continue Reading The Court of Appeals Takes a Look at an Undue Influence Claim from a Non-Jury Trial

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. …
Continue Reading The Answer is Almost Always No

In the recent case Matter of Lee, New York County Surrogate’s Court granted a motion for summary determination that decedent’s father was disqualified as a distributee and beneficiary for failure to support decedent. Yi Stewart discusses the decision in our latest post.
Continue Reading Father Disqualified as Child’s Intestate Distributee for Failure to Support

When thinking of the Surrogate’s Court, jurisdiction over eviction proceedings does not normally come to mind. Yet, over the past 18 months, the Surrogates of New York and Bronx counties have found cause to order an eviction from estate or trust property in order to facilitate its sale. Ilene Cooper discusses those cases in our latest post.
Continue Reading The Remedy of Eviction in the Surrogate’s Court

Given the travel restrictions that have arisen during the COVID-19 pandemic, it is unlikely that many recently-commenced adult guardianship proceedings have led to jurisdictional disputes in courts in different states.  Pre-pandemic, however, in anticipation of commencing adult guardianship proceedings, parties moved the subjects of those proceedings from one state to another, presumably to gain a strategic advantage in forthcoming guardianship disputes. In Matter of J.D.S., New York County Surrogate Rita Mella rendered what appears to be the first reported decision addressing whether a court in New York, or another state, was the appropriate forum for a guardianship dispute concerning a person under a disability. Rob Harper discusses the decision in our latest post.
Continue Reading The Resolution of Interstate Adult Guardianship Disputes in New York