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.
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Eric W. Penzer
Court Denies Motion to Dismiss Turnover Proceeding as Time Barred
A recent decision of the Kings County Surrogate’s Court demonstrates the importance of thoroughly analyzing all aspects of a statute of limitations defense prior to making a dismissal motion. In Matter of Coiro, the court denied such a motion, determining that a turnover proceeding was timely. Notably, the parties disputed both the applicable limitations period and the date of the claim’s accrual. Side-stepping both those issues, the court determined that a statutory toll rendered the claim timely . Eric Penzer discusses the decision in our latest entry.
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“Easy” Cases Make Bad Law Too
In a decision that could well cause even the most casual trusts and estates practitioners to scratch their proverbial heads in wonder, the Appellate Division, Third Department, in Matter of Buchting, 111 AD3d 1114, 975 NYS2d 794 (3d Dept 2013), recently affirmed the determination of the Surrogate’s Court, Greene County, dismissing a “due execution” objection to probate, notwithstanding that both attesting witnesses invoked their Fifth Amendment rights against self-incrimination and refused to testify at their SCPA 1404 examination concerning the execution of the will. Eric Penzer discusses the decision in our latest entry.
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No Sex, No Elective Share?
Constructive abandonment is a rarely litigated basis for denying a surviving spouse his or her elective share, as it is very difficult to prove. In our latest entry, Eric Penzer discusses a recent case addressing the issue.
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Potential Creditor of Trust Beneficiary Not Interested Party In Accounting Proceeding
Nassau County Surrogate Edward W. McCarty, III recently held that potential creditors of a living trust beneficiary were not interested parties in the trust accounting proceeding. Eric Penzer discusses the decision in our latest entry.
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Appellate Division Decides Case Of First Impression Regarding Joint Tenancy Issue
The Appellate Division recently addressed an unusual issue in the case of Trotta v. Ollivier, namely, whether the estate of a joint tenant may sue the surviving joint tenant to recover payments the decedent had made for purchase and upkeep of the property. Eric Penzer discusses the decision in our latest entry.
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Court Decides Issue Of Standing To Participate In Cy Pres Proceeding
If the intended recipient of a charitable bequest can no longer be identified, an executor or trustee will often commence a cy pres proceeding in the Surrogate’s Court to determine the appropriate recipient of the funds. In our latest entry, Eric Penzer discusses a decision in the context of a cy pres application, focusing on the standing of a possible alternative recipient of the subject bequest to participate in the proceeding.
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Surrogate: Dog Groups Barking Up The Wrong Tree
Readers may recall Eric Penzer’s previous entries regarding Leona Helmsley’s charitable trust in which she expressed a desire that its millions of dollars be used for the care and welfare of dogs. This week he addresses the New York County Surrogate’s Court’s latest decision on the issue, after animal welfare charities sought to intervene in the proceeding and vacate a prior determination that the trust assets could be distributed to any charities as the executors saw fit.
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Same-Sex Marriages and the Marriage Recognition Rule
Although New York State has not passed legislation recognizing same-sex marriages, the Appellate Division recently held that such marriages will be recognized by Surrogate’s Courts pursuant to the “marriage recognition rule”. Eric Penzer discusses the decision in our latest entry.
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Mama Cass’s Estate – California Dreamin’ or a Nightmare?
At the time of her death in 1974, it was believed that Ellen Naomi Cohen a/k/a “Mama Cass” of the 1960’s rock-folk group The Mama’s & The Papa’s died intestate. But recent revelations indicate that she may in fact have had a will. Eric Penzer discusses these recent findings in our latest entry.
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