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. …
Continue Reading Waiving a Decedent’s Attorney-Client Privilege

SCPA § 1404 requires that “at least two attesting witnesses must be produced before the court and examined before a written will is admitted to probate.” Very often, litigators think of examinations pursuant to SCPA § 1404 as examinations before trial that are conducted under Article 31 of the CPLR. But they are not. Hillary Frommer discusses this topic in our latest post.
Continue Reading A Reminder that Pre-Objection SCPA § 1404 Exams are Not Simply Article 31 “Depositions”

One of the most fundamental duties of a fiduciary is the duty of loyalty. That is, every fiduciary must administer the estate or trust subject to his or her stewardship solely in the interests of the beneficiaries. If a fiduciary engages in self-dealing, that duty is breached. In Matter of Smith, the Surrogate’s Court, Albany County, recently addressed the liability attendant to fiduciary self-dealing . Ilene Cooper discusses the decision in our latest post. …
Continue Reading Fiduciary Self-Dealing

In 2016, the New York Legislature enacted a version of the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act in Article 13-A (“Article 13-A”) of the Estates, Powers and Trusts Law (“EPTL”).   As illustrated by two recently decided New York Surrogate Court cases, and as previously discussed on this blog (You’ve…

In a recent decision in the Estate of Grunwald (NYLJ Jan. 28 2019, at 33 [Sur Ct, Richmond County]), Surrogate Titone aptly noted that “the concept of domicile is … very important in the Surrogate’s Court.” True words indeed. Where a decedent is domiciled at the time of his or her death determines which…

Pursuant to the provisions of EPTL 5-1.1-A, every surviving spouse of a domiciliary decedent is entitled to a statutory right of election. While a surviving spouse may be disqualified from an elective share under any one of the circumstances enumerated in EPTL 5-1.2, the Surrogate’s and Appellate Courts have crafted a further ground for forfeiture when equity so requires. Such was the result in Matter of Berk, recently decided by the Surrogate’s Court, Kings County. Ilene Cooper discusses the decision in our latest entry. …
Continue Reading Wrongdoer Deprived of Elective Share

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…

In late-August 2018, Governor Cuomo signed into law amendments to EPTL § 11-1.7 regarding exoneration clauses in lifetime trusts, drafted by Rob Harper and Ilene S. Cooper as members of the New York State Bar Association’s Trusts and Estates Law Section. Rob Harper discusses the amendments in our latest blog post.
Continue Reading Hasta La Vista, Exoneration Clauses

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…