In 2021 and 2022, I wrote about Surrogate’s Court decisions that addressed the admission of remotely witnessed wills to probate in New York State.  Since then, Surrogate’s Courts have issued at least two more decisions addressing the validity of remotely witnessed wills.  I now write to provide an update about the validity of remotely witnessed wills, having been involved in two cases that addressed the issue in 2023.
Continue Reading The Admission of Remotely Witnessed Wills to Probate in New York

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

In April 2020, Governor Cuomo issued Executive Order 202.14, authorizing the remote witnessing of wills in the midst of the COVID-19 pandemic. Earlier this week, Broome County Surrogate’s Court issued what appears to be the first reported New York decision addressing the admission to probate of a remotely witnessed will. Rob Harper discusses the decision in our latest post.
Continue Reading Admission of Remotely Witnessed Will to Probate

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

It is easy to be cynical about the “pots and pans,” “tchotchkes,” and “junk” – – the property that is often divided in a contentious manner at the bitter end of an estate litigation, or sometimes forgotten after years of litigation. An ongoing dispute in one of my cases led me to reflect on a

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.
Continue Reading “Easy” Cases Make Bad Law Too

Although summary judgment in a contested probate proceeding historically has been rare, the recent trend has been for Surrogate’s Courts to grant such relief with increasing frequency. Consistent with that recent trend, Surrogate’s Courts have granted summary judgment dismissing probate objections alleging that a testator lacked testamentary capacity, notwithstanding the testator’s diagnosis of dementia before executing the propounded will. Our latest entry, written by Robert M. Harper, discusses several cases in which a testator’s diagnosis of dementia prior to executing the propounded will was insufficient to raise a triable issue of fact to withstand summary judgment dismissing a capacity objection.
Continue Reading Testamentary Capacity, Summary Judgment and a Testator’s Diagnosis of Dementia