To object to the probate of a will, party must have a pecuniary interest that would be adversely affected by the admission of the instrument to probate. In Estate of Saunders, the Kings County Surrogate’s Court recently issued two decisions addressing the standing arguments of litigants in this context. Hillary Frommer discusses these cases in our latest entry.
Continue Reading Sometimes It’s Just a Question of Standing

As parties prepare for trial before the Surrogate’s Court, a question that oftentimes arises is whether there is a right to a trial by jury. In this entry, Robert Harper explains why no such right exists in the case of proceedings concerning the removal of a fiduciary.
Continue Reading Jury Trials in Surrogate’s Court Removal Proceedings

Although one of the many duties of an executor is to marshal and appraise estate assets, and, depending on the terms of the governing instrument, liquidate them for purposes of distribution, the fulfillment of these duties may, at times, result in fiduciary liability. That was the case Matter of Billmyer, a recent decision emanating from the Second Department. Ilene Cooper discusses the decision in our latest entry.
Continue Reading Fiduciary Imprudence: When the Sale of an Asset Results in a Surcharge

A nominated executor is obliged to secure estate assets even before the issuance of letters testamentary. But what if the nominated executor expends personal funds to preserve assets that she erroneously believed to belong to the estate? Is she entitled to reimbursement? The Oneida County Surrogate’s Court recently addressed this situation in Matter of Timpano. Brian Corrigan discusses the case in our latest entry.
Continue Reading Executor’s Duties Before Receiving Letters

Powers of attorney and trust instruments have each been the subject of many an estate plan. They each have also been the subject of multiple estate litigations. In combination, the two have served as fodder for controversies surrounding the agent’s authority over the trust and its terms. Two decisions — Matter of Goetz and Matter of Perosi v. LiGreci — have addressed the issue, albeit with different results. Both decisions provide valuable instruction for drafters and litigators. Ilene Cooper discusses these cases in our latest entry.
Continue Reading Lessons to be Learned From the Power of Attorney

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.
Continue Reading Sharp as a Tack . . . Clear as a Bell

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.
Continue Reading A Flood . . . in the Basement

In two recent decisions, Surrogate Lopez Torres of Kings County denied petitions for guardianship under SCPA Article 17-A, demonstrating the strict circumstances under which guardians are appointed under this particular statute. Unlike under Article 81 of the Mental Hygiene Law, the court has no discretion or authority to limit or tailor the powers of a guardian under Article 17-A. Thus, in both proceedings, the court was quite cognizant of the fact that an Article 17-A guardianship is the most restrictive form of guardianship available in New York. Hillary Frommer discusses the decisions in our latest entry.
Continue Reading Article 17-A Guardianship: It is Not for Everyone

In construing an in terrorem provision, or any part of a will, the paramount consideration is identifying and carrying out the testator’s intent. Although paramount, the testator’s intention will not be given effect if doing so would violate public policy. For example, an in terrorem provision that purports to prevent a beneficiary from questioning a fiduciary’s conduct is void as contrary to public policy. The recent decision of Matter of Sochurek illustrates the difficulty in reconciling the testator’s intention in respect of an in terrorem condition with the rights of beneficiaries to obtain an accounting or otherwise challenge the actions of their fiduciary. Brian Corrigan discusses the case in our latest entry.
Continue Reading Coordinating a Testator’s Intention with Public Policy Can Prove Challenging When Construing an In Terrorem Condition